Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-08

principle upon which the statute of
limitations is applied is not merely
that the party pleading It has set up
an adverse claim as having existed
during the period specified in the
statute, but that the adverse claim
Is accompanied by such an Invasion
Of the rights of the opposing party
as to give the latter a cause OF ac-
tion. which, not having been prose-
cuted within the time limited by law
is presumed to be extlnguished or
surrendered. Buswell's Limitations
and Adverse Possession. SEC. 237.
Where the possession commences
by the permission Of the owner, there
can be no disseisin or adverse pos
session until there has been dis
claimer by the assertion of an ad-
verse title, and notice thereof, either
actual or constructive" Wood on
Limitation OF Actions, Sec 256, p.
5O7; 1 Am. & Eng. Enc. Of Law, 79S.
The plaintiff entered under an ex-
ecutory contract OF purchase and
thereafter in no way notified the
state that he claimed the land In hos
Utility to its title, and there was no
overt act on his part which would
amount to constructive notice there
Of. In 1882 he entered and held the
land under the defendants grantor,
by virtue OF his certificate Of sale or
contract to purchase, until 1898. His
possession appears to have been suf-
flcient to set the statute in motion,
II his possession had been hostile to
the state. Since that time he has
shown no different claim except that
he abandoned his right to purchase,
allowed the cancellation Of his entry,
and permitted his wife to purchase
the remainder Of the quarter section.
Plaintiff does not show that he
claimed ownership in any way since
that time or before, except in subor-
dination to the title OF the state, and
! It is not shown that he ever asserted
any title. He appears to claim some
right by virtue Of his contract with
the state, and introduces evidence
Of payments hereunder.
It was said by Mr.. Chief Justice
Eakin in Bayne v. Brown. (or) ilS
Pac. 2S2. 1T Is the adverse possess
sion under claim of ownership that
establishes the title. - ." Plaintiffs
possession was not hostile to the state
nor under claim OF ownership.
It Is urged by counsel for plaintiff,
that on account Of the letter Of the
clerk of the state land board TO the
effort that the state could not con-
yey the land, that thereby the pre-
sumption OF the delivery Of the deed
from E. S. McComas ct al. to the
state. was contradlcted. II Is not
shown by any testimony that the Of
ficers OF the state did not have full
cognizance OF the deed referred to-
at the time OF its execution and for
many years thereafter
The fact that the clerk Of the state
land board, at one time, did not have
the land in question listed, and did
not know that the same had been
decided to the state. and the insiru-
ment duly recorded in 1877 would
not, in our opinion, in the absence
OF proof tending to show that there
was no delivery OF the deed, and
without the assertion by plaintiff OF
valid claim Of title to the land
defeat the title OF the state or change
the effect Of the deed TO the state
or overcome the presumption Of de-
livery Of the deed arising from the
recording OF the same. II so, the