Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-04

the whole, but the rule is not abso-
Lutte. It is a rule Of eYidence,-not
one of property, and It may be more
properly said that such holding is
only evidence Of possession and such
evidence OF an intent to claim the
whole tract decided as, with certain
we'll defined exceptions, will be con-
elusive. The theory is that posses
sion Of a part OF a well-defined tract
OF land, with deed to the whole, are
such circumstances of notoriety as
would naturally come to the knowl-
edge of the true owners and attract
his attention to the nature and ex-
tent Of the claim against his prop
erty. But in cases like the present,
where the overlap was covered by
timber and brush, and where no part
OF II was actually occupied or i'm
proved by any one, and where there
was nothing in defendants occnpa-
tion Of a remote portion Of the tract
embraced in his deed to put plain
tins grantors upon notice that he was
claiming their property, the reason
OF the rule no longer obtains. Defen-
dant was not claiming TO a particu-
lar line upon the ground. The boun-
daries Of his tract were not so clear
ly defined in his own mind that he
could go to a particular line or place
on the ground and say Here is my
north line;" he could only say, II
claim to a distance far enough north
to include 75h acres"
Up to a short time before the COM
mencement Of this suit there was
nothing in his attitude or actions from
which plaintiff or his grantors could
infer that he intended to disseize
them or to notify them that they
must bring ejectment to protect their
rights. We cannot assent TO the doc
trlne that adverse possession can be
obtained in any case by stealth or by
acts not calculated under the partic-
ular circumstances of the case to ap-
prise the true owner that the sup
posed adverse claimant Is actually
intending to occupy his lands. In the
state Of Oregon are thousands of
acres of timber land, remote from the
centers of population and not readily
subject to the observation of the
owners, and the boundaries of which
cannot be ascertained without care
full surveys. To hold that an adjoin-
ing proprietor, who takes by a subse-
quent deed enormously including
land of his neighboring owner, can,
without that owners knowledge and
even his own, acquire constructive
adverse possession that will in time
deprive the true owner of his prop
erty, would violate every principle of
justice.
"ln order that the rightful owner
may be divested of the whole tract
described in the deed, the partial oc-
cupation must be Of land included in
the description of the deed which is
to serve as color of title, and the ac-
tual possession of a part must be of
such a character as to give rise to a
reasonable presumption that the
owner knows that the entry was made
under color of title. If this presump-
tion be not reasonable under the cir
cumstances of the case, the disseizing
will not extend beyond the actual oc-
cupation." Tiedman, on Real. Prop.
g ed) F494; Bailey VS.. Carleton, 10
N, H. 8.
1t should always be remembered
that the law favors the true owner
and requires strict proof of an intent
to claim his property adversely be-
fore an adverse claim can be sns-
tained, Such clear proof does not ex-
list in this case, Defendant intended
to claim 751s acres of land but that
he ever meant to claim the 10 acres
now In dispute, or to hold that It was
within the boundaries of his tract, is
not sufficiently proved. The claim
never was asserted positively until
a survey, shortly before the begin
ming of this suit, demonstrated that
he could only have his full quota of
land by taking that which honestly
belonged to his neighbor.
The decree of the circuit court was
right and should be affirmed.
Dow VS.. Smith, Coos County.
r. S. Dow, respondent, V. Courteney
Lumber company, corporation, w.
F. Mathews as assignee of Courteney
Lumber Company, A. A. Courteney,
Seton. defendants and re-
spondents. G. A. Smith Lumber and
Manufacturing Company. defendant
and appellant Smith & Watson Iron
Works, a corporation. Marshall-Wells
Hardware Company, A. ]. Paul and ].
R. Bowles, defendants. Appeal from
the circuit court for Coos county.
The Honorable ], w, Hamilton. Judge.
Argued and submitted Feb. s. 1911.
John D, Goss, for appellant. L. A.
.ilieOvist (Clarka Rlaka and ma