!
DAUT CAPITAL JOCB?f AL, 61LRX, OREGON, TUESDAY, JANUARY 80. 1912.'
OREGON SUPREME COURT DECISIONS
Fill Text Pib'lighed by Coartesy of I. A, Turner, Reporter of the
,,,
NOTICE TO ATTORNEYS.
! After February fifth The Capital Journal will discontinue
the publication of the supreme court decisions.
jucbfiuiin,
t. Tennnnt, Douglas
County.
Decided January 23, 1912..
j a. Buchanan, appellant, v.
Phoebe Tennant,' respondent . Ap
1 from the circuit court for Doufc
county. The Hon. J. W. Hamil
ton Judge. Argued and submitted
jul 10, 1912. J. . Buchanan (and
Albert Abraham, on brief) for ap
pellant. A. N. Orcutt (Fullerton &
orcutt, on brief) for respondent.
jlcBrlile, J. Affirmed.
in June, 1906, olaintiff entered
into a written contract with defen-
w to clear ncr uu u ueruuu muu
in Douglas couny fom a cloud cast
iipoa It by sales thereof made" by the
coutny for delinquent laxea. u was
agreed thereby that If plaintiff failed
to clear the title he should receive
nothing for his services, but If he
lucceeded, by suit or otherwise, de
fendant was to make him a warranty
deed to an undivided one-half Inter
est in the land.
Thereafter plaintiff began a suit
(0r specific performance of defen
dant's contract to convey the one
lalf interest, alleg'ng that he began
I suit to remove the cloud and that
be had performed his part of the
ijreement; and that defendant had
obtained thereby a ;ood title but had
refused to convey to him the half
Interest. Defendant answered, ad
mitting substantially the contract but
alleging that upon Its execution she
directed plaintiff tr take the neces
sary steps to have tho cloud re
moved; and alleged that plaintiff de
layed taking any s'-tlon In the mat
ter for several months; that In Sep
tember, 1906, she employed her hus
band as her agent and attorney to
take such proceedings In the matter
aa were necessary to establish her
title to the lands In question: thnf
in October, 1906, she ascertained
through him that plaintiff had not
commenced any proceeding or taken
any steps to clear the title from the
auegea tax liens, which constituted
the cloud, but on the contrary had
allowed the lien for the taxes
1901, for which the property was sold
in 1903, to proceed so far that that
a tax deed had been made to J. F,
uarKer ana G. R. Chllds, the pur-
ctmsesrs at the tax sale; that on ac
count of plaintiff's delay in com-
menclng proceedings, defendant can
celled the contract and notified plain
tiff, not to proceed further under it
mat defendants agmt proceeded at
once to clear the title, and contract
ed to purohase the interest of Child's
and Barker to the same, the contract
to be completed as soon as Chllds, a
resident of California, could execute
a deed thereto; that plaintiff, not
withstanding that defendant had no
tified him that the contract was can
celled, and knowing that defendant
M --
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ffects a soothing cure for the
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akes life more pleasant and
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nlivens the spirit of the down
cast and disheartened,
Cndows existence with hopes
and aspirations
Bstores man to fulness of
strength and activity,
had purchased the interest of Chllds
,uu wrKer. comenced a suit in the
name of defendant against Chllds
and Barker to quiet the title, veri
fying the complaint hlmanif
knowing when he filed the complaint
that the title was clear.
There was also pleaded a defense
inat tne agreement was chn
n J A I m WWW"
"uu, mererore, illegal and void, and
a, max it was obtained by fraud
.-"t uusrepresenumons as to the
vatue or the property.
All tho no. .
v "'tiuer m tne answer
having been put at issue by reply
the cause was head and the court
maae tne rollowing findings of facts'
"First: That plaintiff, after th
ecution of the contract referred to in
the pleadings heroin, delayed the
commencement of the suit agreed by
urn io DO Drought for defendant
. a uaaiuucll
uu,UUSi, plaintiff s desire to Infnrm
mmseir more particularly as to
plaintiff's (defendant here) title to
said real property formine the onh.
ject or said proposed suit.
Gannml, mt.-i. . . .
. xuai piaintirr was not
negligent In the prosecution of said
suit.
Third: That the value of said real
property referred to in the complaint
herein at the time of the said con
tract being entered into between
plaintiff and defendant was approxi
mately $1500.
Fourth: That the opinion given by
plaintiff to defendant at said time
that said real property was or the
probable value of $M0 was not frau
dulently given, nor did the plaintiff
Intend to deceive or cheat defendant
in said matter.
"Fifth: That plaintiff agreed to
bear the expenses of said litigation
except $5 advance by defendant
Sixth: That before any suit was
comnsnced by plaintiff in pursuance
with said contract defendant througn
her agent notified plaintiff not to
commence said suit; that said mat
ter was in process of settlement.
"Seventh: That said controversy
was settled without suit by payment
by defendant of $100 and by plaintiff
of $42 in redemption of said real
property from sale thereof for taxes."
Based upon these facts, the court
made the following conclusions of
law:
"First
PICS TERES
That after making the Bald
contract with the plaintiff It was
within the power of the defendant to
settle said controversy In relation to
which plaintiff had been retained as
attorney.
"Second. That In the event of such
settlement made In good faith with
out the intent of defrauding plain
tiff, plaintiff is not entitled to a de-
cee of specific performance as for a
contract the terms of which have
been performed on his part.
Third. ' That the complaint herein
should be dismissed with costs to
defendant"
Thereupon a decree was entered in
favor of defendant dismissing the
suit and plaintiff appeals to this
court.
Upon the hearing here the court
affirmed the decree and findings of
the circuit court The decree is as
follows: "This cause having, on the
30th day of November, 1909, been
duly tried, argued and submitted to
the court upon and concerning all
the questions arising upon the tran
script, record and evidence, and then
reserved for further consideration.
And the court having duly considered
all the said questions, as well as the
suggestions, made by counsel In their
argument and briefs, finds that there
Is not error as allegod. It is there
fore ordered and adjudged and de
creed by the court that the decree
of the court below In this cause ren
dered and entered be and the same
Is, In all things, a firmed. And the
court having considered the evidence
and the findings of fact made by the
court below in this cause, finds that
the said findings of fact made by
the court below In this cause, finds
that the said findings are correct, and
are sustained by the evidence, and
that the cncluslons of law are cor
rectly deduced In 'ts conclusions of
law therefrom, It Is ordered by the
court that the findings of fact and
conclusions of law made and found
In the court bolow In this cause be
adopted and found In this court as
such. And based thereon, and upon
the whole record in this cause, It Is
further ordered, adjudged and de
creed that the suit of the appellant
herein be and It is dismissed, and
that the respondent recover nir gnd
from the appellant her costs and dis
bursements in the court below, to
be there taxed."
The opinion filed in the cause dis
cussed but one feature of the case,
namely, whether plaintiff had' per
formed his contract V) clear the title,
and it was therein held that by cer
tain tax sales, prior to those made
to Barker and Chllds, the county bad
acquired a lien, which had ripened
Into a title, to the land In contro
versy, and that the payment, by
plaintiff, to the county of such taxes
and penalties, and the assignment by
the county to defendant of the tax
certificates executed to it by the sher
iff, did no operate to revert the title
in defendant and that plaintiff and
defendant were both wrong In as
suming that the title was clear, and
that consequently plaint Iff i conten
tion, that he had procured defendant
a clear title, was not sustained, the
court saying: "R would thus appear,
not only that plaintiff has not fully
Performed the terms of his contract,
without which he cannot recover, but
aiBo that the defendant, contrary to
her and her agent's formerly self-con
ceived notions, had, and still has, much
need of the plaintiff, or some other
attorney, to perfect the title to the
premises." (55 r. 121.)
Upon the rendition of this opinion
plaintiff procured from the county a
quit-claim deed completely clearing
the title and again brought Bult for
specific performance. Defendant an
swered, pleading the judgment and
decree of this court-as a defense to
the suit, and this plea being sustained
me suit was dismissed. Plaintiff
appeals.
ftictmae, j. Piaintirf's argument
proceeds upon the theory that, if the
opinion rendered by the supreme court
in the former case Is to control, the
ruling of the circuit court must be
reversed; but, if the decree rendered
is to control, the ruling below must
stand. Wa will discuss the case from
that point of view.
We think the rule well settled that,
If the decree is ambiguous In Its terms,
resort may be had to the opinio to
ascertain its meaning: II Van Fleet,
Former Adjud., section 278; Legrnnd
v. Rlxey, 83 Va. 462; Burton v. Mill,
78 Va. 470; New Orleans, etc. R, Co. v.
City of New Orleans, 14 Fed. 873.
But where the decree Is unambigu
ous, resort will not be had to the opln
Ion to contradict It or to show that
matters apparently decided were not
actually passed upon.
The force of the estoppel resides in
the Judgment itself. It is not the End
ing of the court nor the verdict of
the Ju y which concludes the parties
but the Judgment entered thereon. The
reasoning of.the-court In rendering a
Judgment forms no Part of the Judg
ment as regards Its conclusive effect;
nor are the parties bound by the re
marks made or opinions expressed by
the court in deciding the cause, which
do not necessarily enter Into the Judg
ment: 23 Cyc. 1218, and cases there
cited.
The former decree of this court was
conclusive of the whole Issue, and
while the opinion filed did not discuss
some phases of the case included In
the final decree, and seems at vari
ance In some particulars with the de
cree Itself. It is binding unon this
court. We have frequently recalled
mandates and corrected such discrep
ancles upon their being called to our
attention, but such course was not
pursued In this c:ie, and In the ab
sence of such procedure or any direct
procedure to Bet aside the decree for
mistake, It was binding upon the court
below and is also binding upo this
court. In any event the opinion ren
dered by this court held that Plaintiff
had not performed his part 'of the
agreement at the time of the bringing
of his first action, and it does not
stand to reason that, several years
later and after that suit had been dis
missed and he had been discharged
by defendant, he could, without a new
arrangement with her, act as her attor
ney and complete the performance of
his contract. The contract to clear
plaintiff's title was entered Into In
June, 190S, and on January 4, 1910,
this action was commenced. As no
time was fixed for performance of the
contract, the law Implied a stipulation
that it should be performed within a
reasonable time. A delay of three
years and a half, unexplained, Is prima
facie unreasonable, and while the
plaintiff may have an action on quan
tum meruit for the value of his ser
vices, or for damages for hls discharge,
It would seem that even had the decree
followed the opinion he would have
had no case for specific performance.
The decree of the circuit court Is
affirmed.
City of Sewbeig t. Klenlp, Yamhill
County,
Decided January ?3, 1912.
The City of Newberg, a municipal
corporation, appellant, v. Edward J.
Klenle, respondent. Appeal from
Yamhill county. The Hon. William
Galloway, Judge. Argued and sub
mitted December tl, 1911. 8. B.
Huston (and Clarence Butt, on brief)
for appellant McCain & Vinton
(and F. W. Fenton, on brief) for re
spondent Eakin, C. J. Reversed.
Eakln, C. J. The City of Newberg
by tills proceeding seeks to enjoin
defendant from extending Into the
Btreet a building he Is erecti'g on
block 12 of Everests' Addition to
Newberg, and the dispute Is as to
tus iucniiun oi the northwest line of
ths street now called "Dayton Ave
nue,' formerly known as the "Dayton-Portland
road," which we will
hereafter refer to as the road. It
was travelled as a road long prior to
1866, pnsHlng approximately north
47 degrees, 10 minutes east diagonal
ly acrss the northwest corner of the
Rogers' Donation Imd Claim, which
la now within the city of Newberg.
In March, 1866, David Everest pur
chased from the heirs of Rogers 17
acres In the northwest corner of the
claim, Including that part of the
claim northwest of the road. Until
purchased, by Everest, and for a few
years thereafter, this portion of the
Rogers' donation claim evidently
was not enclosed. Richard Everest,
a son of David Everest, says that
about three years after his father
traded for the 17-acre tract he
fenced It, namely, about the year
1871, which, so far as appears, was
the only fenc ever built along the
northwest side of the road and en
closed the Everest tract, and which
remained there until about the year
1895 when It began to disappear,
On March 1, 1888, Everest platted
th. tract Into lots, blocks, street
and alleys. The notes of the survov
of the platting, if any, are Lot
evidence end there is noth!ng on the
rlat to indicates tb location of the
southeast line of the platted rrcuud.
All the blocks bordering on the road
are fractional blocks and their di
mensions cannot be determined from
the plat but the southeast line of
the blocks are indicated thereon by
heavy black lines adjacent to the
road. The tracing of the survey of
tne 17-acre tract, given In evidence
by Herring, as taken from the deed.
discloses that it Included a portion
or the road as now recognized, name
ly, about 15 feet If the blocks and
lots were staked on the ground when
the addition was platted, it was not
shown in th evidence, nor has there
been any attempt to locate the cor
ners or lines of the blocks bordering
on the road. If Everest owned to
the center of the road at the time he
platted the ground, we would be
Justified, from the facts appearing,
in holding that he dedicated- to the
public so much of the road as is in
cluded in his tract, but as we have
before us no data as to these facts
or the location of the road with ref
erence to the plat, it does not aid
us in determining the location of the
road or rather its northwest boun
dary. It apepars that the county jnade
some effort in April, 1871, to lay out
and establish the road as a county
road under the statnte but It Is prac
tically conceded that what was done
In that matter was Insufficient to es
tablish a road, and the record does
not aid plaintiff's case ohcr than it
operates .as color of title in the use
of the road thereafter. It is to be
noted that the building of the fence
was approximately at the time of
this attempt by the county to lay out
the road and the use by the public
will be presumed to extend to the
fence.
It is said in Washington Borough
v. Steiner, 25 Pa. Sup. Ct 392, that
"Where the right to a public high
way is acquired by adverse user, an
important element in determining
the width thereof is the recognition
of tho limits of the way by the own
ers whose lands front thereon, as in
dicated by the monuments and fences
which they themselves place upon
the ground, and the lines which they
nx for the stune in making convey
ances of their property."
In Kruger v. LeBlanc, 70 Mich. 79,
it is said: "Highways by user are
based upon the implied dedication by
the owner of the land; and, where
there is nothing to Indicate a con
trary Intention, th presumption is
that the owner intended to dedicate
the land to the full legal width:
Bumpus v. Miller, 4 Mich. 159. But
where the owner has placed fences
or other means, during the time the
statute Is running, within the statu-
tory width, it indicates an intention
not to dedicate to the full width, and
the public is only entitled to claim
the part which It has been permit
ted to use." See also Bump v. Mil
ler, 4 Mich. 150.
It Is conceded by defendant that
this road was a lejqil county road
and is now a city otroet by user, aad
he only questions Its location or the
location of Its northwest boundary.
Those statements eliminate all the
questions involved xcept the loca
tion of the boundary of the road as
acquired by user. Adverse posses
sion of the ground cannot aid defen
dant unless his possession continued
for 10 years prior to the 25th day of
May, 1895, when the state and coun
ty were exempted from th opera
tion of the statute of limitations, and
defendant makes no contention of
such possession except by virtue-of
the orglnal fence ullt la 1871 by
Everest, and plaintiff seems to admit
that the location of that fence Is the
northwest boundary of the road, and
Is the true boundary of the road, and
we will attempt to ascertain the ori
ginal location of the fence, referred
to as a "rail worm fence."
At the time of the trial there was
none of the fence rcmalnlne and
plaintiff seeks to establish Its origi
nal location by persons who were
familiar with It. Many witnesses
Identify an apple tree as having
stood within the rorm cf ihi f,,Dt,
on the ground that is now' a part of
defendant's lot, the stump of which
Is now Intact and within defendant's
building, A great deal of the testi
mony for both parties centered
around this tree. They also Identify
a haw tree, which is still standing on
block 12 and near defendant's lot,
farther southwest, ss having stood In
the fence line. There are many oth
er trees that are Identified as either
having stood in the fence line or
very near It, most of them still far
ther southwest, which are all very
.persuasive as to the location of the
fence. The apple tree mentioned is
the most Important as It is within
defendant's lot and If identified de
termines the line at the Immediate
point In controversy.
Wilson's testimony Is to the effect
that he lived there about 21 years
and used to get upon the fence and
fM i
I TniYlftlVntAT ie fka nr- J
Day of Our January
Clearance
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Special 69c .-
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Popular
L5J 145-14 Worth liberty Street. Isj
MERCHANDISE Between State and Court.
FKICJJS
Moll Carriers Will Fly.
This Is an age of groat discoveries.
Adnilnlstratort Final Notice.
Progress ride, on the air. Soon we Vred' adu.'inlst'rator Tf the ""l
may see Uncle Sam's mall carriers , tate of James Edsall Rutherford, de
flying in all directions, transporting ceased, has filed his final account in
mail. People take a wonderful Inter-1 sald estate, and that the county
iv ui manon councy, urogon, UBS
fixed Wednesday, the 81st dnv of
est ,n the discovery that benefit, them S T.
That's why Dr. King's New1 Discovery
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and lung diseases is the
juuuury, laiz, at xu o clock a, m.
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most , salen. Oregon, as the time and placa
popular medicine In America. "It ! ai account and for X Setttointrt
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writes Mrs. J. F. Davis, Stlckney Dated this 30th day of December,
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0 "-
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l-2-12-5t-tues
o
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(Continued on Pag 6)
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