Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-30


plaintiffs close and are reputed
owners of separate tracts within
plated district known as "Delash-
mutt and Oatman's Little Homes
Subdivision No. A." which is adjacent
to the plaintiffs premises. 1t is ad-
mitted that there is public road on
the south side of plaintiffs tract and
on the north side an alley or narrow
street laid out in the Little Homes"
tract. The gravamen of the charge
is that on the night of August 4,
1908, in pursuance of their conspir-
acy, the defendants tore down plain
tiff's fence on the west side of her
enclosure and afterwards, as often as
she restored it, they again tore it
down, their purpose being to force
her to set it over on her land far
enough to make the alley as wide as
1t is elsewhere to the northward in
Little Homes" The plaintiff alleges
that her orchard growing upon the
premises was thereby exposed to
stock running at large, which browsed
upon the trees and otherwise in
jured them, on account of all which
she was damaged in the sum Of
$25OO.
The answer denies the plaintiffs
ownership, the conspiracy, and the
grievances complained Of For new
matter 1t is alleged that the plain
tiff and her predecessors in interest
are and have been for a number Of
years last past the owners of a tract
of land containing 10 acres, situated
in Section Is, Township 1, South,
Range 2 East, in Multnomah county,
Oregon, lying adjacent to DeLash-
mutt and Oatman's Little Homes No.
A." In substance they further con-
tend by their allegations that the
plaintiff and her predecessors main
tanned a fence in and upon street
or highway which they claim was
dedicated on the west side of her
tract and that on her having refused
to remove the fence these defendants
acting under advice of counsel, quiet
ly and peaceably removed said fence
which so obstructed said public
street and public highway as to pre-
vent the same from being used by the
public and by these defendants with
out any damage to the plaintiff" "
The reply traverses materially the
other allegations of new matter in
the answer. No part of the territory
mentioned in the pleadings is within
the limits of any city or town.
At the close of the defendants tes.
timony the court directed a verdict
for the defendants upon which g
judgment was rendered The plain.
tiff appeals.
Burnett, j.: 1t is conceded thai
! Delashmutt and Oatman were at one
time owners of land including the II
acre tract in question and that OF
October 10, 1885, they conveyed the
tract by metes and bounds to one
Hattie Murtha by deed in which, a
the end of the description of the
land occur these words: containing
10 acres, reserving a strip of land of
and from the west side 80 feet il
width, which is dedicated for a public
roadway This description and res
ervation appears to have been useC
in all the conveyances by plaintiff!
predecessors in title from the Muir
tina deed down to plaintiff. She gavC
evidence tending to show that one o
her predecessors, Louis Kettler
bought the tract in 1893 when 1t wa!
all in timber and brush except a yer!
small portion; that he had 1t sur
veyed by his deed, cleared and fenced
1t according to the survey in 1894
that the fence was maintained on tn,
same line until it was torn down b,
the defendants; that Kettler set ou
the whole tract to fruit trees and |
was so used as an orchard continu
ously until the trespass complainet
Of. The evidence tends to show
complete chain of title under tn
same inclosure from Delashmutt ant
0atman down to and including tn
plaintiff, AS against the denials o
the answer this was sufficient evi
dence to take the case to the jury un
der the authority of Caufield V. Clark
II Or, 473, and analogous authorities
to the effect that adverse occupanc.
Of land for the statutory period un
der claim Of right, although by mis-
take as to the true boundary, will
operate to confer title by possession
Even conceding all that the defen
dants claim as to the dedication, ye
the plaintiff is entitled to have hei
case submitted to the jury on the
question as to whether the fence was
on the boundary of the land as sale
to be restricted by the dedication
The survey made by Kettler ant
mentioned in his eyidenne WAS snfi.