Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-30
OREGON SUPREME
COURT DECISIONS
CONTINUED from Page 81


tlons on ibe ground, Of the fence line
Jesse Edwards, who has been there
% years, testified as 10 haw tree
that indicates distinctly where the
fence was, Us limbs having spread
between the rails; that the apple
tree stood in the corner OF the fence
and the rosc briarq along the fence
all indicated the fence row.
IIoakiBs, who lived there since
1873 says: There was a hr tree stood
well up to where that road juno
toned with the Portland road, up
close to the corner Cthe n p. corner
OF block i2) farther down
probably six rods there was
an apple tree; and still farther down,
but a little east or a little west was
another apple tree, but before you
get to that apple tree there was a
haw bush or thorn, crab-tree or
something stood between the apple
trees >. The lower apple tree
was inside OF the field The
ar tree and the Hrst apple
tree was very nearly the corner Of
the lock Of the fence > :. The
thorn tree was out in the field a 1T
tle;7 and except the one apple tree,
they were IN the line Of the fenc
oliver, Butler, &. J. Edwards, Yes
tai. Hagoy and Smith, all testify
more or less definitely as TO the brl-
ars, the thorn tree, apple trees and
the iir, as indicating tho line OF the
fence The testimony OF W. n. Ever
est and Granville Everest, sons Of
David Everest tends TO contradict
the location OF Che apple tree, the
stump Of which Is stlll standing
within defendants building. II had
been many years since they moved
away from their fathers place and
they have not noticed the trees much
since, and evidently identified the
tree that the other witnesses say was
out from the fence q little way ai
the one evidenced by tho stump. The
other witnesses state that the tre'
IN the fence row bore yellow apples
while the Eyereats say that the tire,
they have In mind bore striped ap
pies, and their testimony 10 not con
yinoing, The evidence tends to show
that there we're three apple trees
two Ia or near tho fence and on,
lower and out from the fence III
ile, and the Eyerests must have II
mind The one out from the fence
And We conclude that these trees, es
pecially the haw tree and apple tire
stump Indicate the tine OF the fenc
which was built IN 1871 and stoo
there until probably 1895 or later,
period Of ~ years, and has served a
barrier or boundary OF the roal
on the northwest as Travelled an
used by the public.
We have before ua also tho count
surveyors field notes Of the roa
illod IN the road proceedings In 1871
and II IN conceded that the portion d
the survey between angles 30 and
Is the portion OF the road involve
here, and In these notes the course
glyen IN. l6M degrees n"
Witness Herring, who gives us hI
traolngs OF the Everest tract, run
that line on the course n, A. degree
20 minutes ~, bleng so minutes east
tho county surveyors course, Tn
also tends to corroborate plaintiff
contention as to the location Of III
fence az block a. This ia further col
roboraled by the location OF a blacl
smith shop built ut the present site
the new building Smith testified tn
this new building IL longer than II
old shop 'Thla building Is gre,
deal longer q. exieuds farther aoull
especially the east part OF
extends q great many feet - IA
ther back than lhe-other part N
east part OF the old building WI
short Furguson gives the dlmel
slcns Of the old shop on the west ii,
az 3 feet Inches shorter north al
noulh than the new building and
feet Inches shorter on the east cid
Indicating that Il was wholly lnsi,
the line Of the Old tenco. asa 3; wi
built whes ::;sv location o. the fen,
could not have been IN doubt, ,hl
indicating that deiendanta acts In e
tending the new building we're Il
hlel enciuAchmonW at that point b
yond the line OF the fence, Eyere
aud hls successors IN interest a
bound by the location Of the fence
Indicating the north west boundary
the read
Defendant pleads Vsloppel again
the city, but The estoppel alleged
that plaintiff has recognized the fem
Gor more than zen years as the mort
west line Of the road. bu, "a we ha
found that the sepce was the mort
west boundary Of the road we need n
enter Into any discussion Of the este
pei Neither defendant nor HIS prod
ceasors have occupied the lot beyoi
che fence llhe os here found nor be
Induced by any acts Of the eliy 10
any &C, or make any expenditure up
The ground beyond The tcnee limo,
Thn NoNd frnin N,varaet a. Marc.