Manning v. Gregoire , 97 Or. 394 ( 1920 )

BURNETT, J.

1. The testimony is to the effect that the predecessors in title of the parties owned adjoining lands and some time prior to 1875 built a fence through the timber on the blazed line of an old survey, the north half of which fence was designated as belonging to the plaintiff’s predecessor, and the south half- to the defendant’s predecessor. The plaintiffs acquired title to the property on the west side of the fence in 1875. They afterward cleared out the timber from nearly all of the tract in dispute, reduced the clearing to cultivation and have continuously maintained their possession up to the line of the fence, ever since they occupied it in 1875. The case is like that of Krueger v. Brooks, 94 Or. 119 (184 Pac. 285), in which Mr. Justice Harris, delivering the opinion, said:

“It is not necessary to state any additional facts or to relate any more of the evidence concerning the nature of the use which the plaintiff and his grantor made of the lands south of the fence; but it is enough to say that, although the evidence in behalf of the plaintiff was contradicted by witnesses for the defendant, nevertheless, the record clearly shows that the plaintiff and his grantor have been in actual possession of and have used Tract D under claim of ownership for considerably more than ten years. The fact that all the land south of the fence was cleared, and the fact that all of the land south of the fence, which could be cultivated, was in truth cultivated up to the fence, plus the fact that the fence was maintained as the dividing line for so many years, is the strongest kind of evidence that Charles Krueger, as well as his successor, the plaintiff, claimed ownership in all the land south of the fence. In brief, the evidence shows that the plaintiff is the owner in fee simple of Tract D by force of a title acquired by adverse possession: Gist v. Doke, 42 Or. 225 (70 Pac. 704); Dunnigan v. Wood, 58 Or. 119, 125 (112 Pac. 531); Stout v. Michelbook, 58 Or. 372 (114 Pac. 929).”

During the testimony of the plaintiff Y. A. Manning he stated that Michael Ferschweiler, a son of a former owner on the east side of the disputed line, contended about 1894 that the fence was not on the right line, and that he caused the late Judge Bonham as his representative to write to the witness, making claim to the land. Manning says:

“We went to see Mr. Bonham; I explained to him the condition the fence was made by himself and Yiessman as to the line. We cleared up to the fence and held it to that time, and never was any complaint. Mr. Ferschweiler built it as the line, and Bonham says, ‘If that is the condition of this line fence,’ he says, ‘they can’t be changed.’ Then he gave examples of his own experience in that line.”

Mrs. Manning, the other plaintiff, testified concerning the conversation with Judge Bonham thus:

“Well, I couldn’t remember what year, but I went with my husband; we both went together and saw him, but I don’t remember just exactly the year.”

She said just her husband, Judge Bonham, and herself were present at the conversation. At that point the defendant’s attorney objected to the testimony as incompetent, and counsel for the plaintiffs went no further with the matter.

2. After the case had been argued, submitted and decided against the defendant in the Circuit Court, her counsel made an affidavit to the effect that during the negotiations about taking the deposition of Ferschweiler no suggestion was made by plaintiffs’ counsel about the evidence afterwards offered at the trial, by plaintiffs, pertaining to a conversation with Michael Ferschweiler, the son of the former owner, in Judge Bonham’s office, nor was any mention made of retaining Judge Bonham or of the Judge Bonham incident; that since the trial he had consulted with Michael Ferschweiler by mail at some point in northern Canada, and that the latter had made an affidavit, denying that he had ever employed Judge Bonham, or that he had been present at or participated in any such conversation. Based upon this showing, the defendant applied for a reopening of the decree and for a new trial, but this was denied, and the refusal is made one of t]be specifications of error. We think the court did not abuse its discretion in refusing to reopen the case. In the first place, no objection was made to the testimony of V. A. Manning respecting his conversation with Judge Bonham, and, besides that, neither of the plaintiffs pretended that Michael Ferschweiler was present at the conversation. Hence, the denial of the latter that he was a participant in that talk would be utterly immaterial. If the defendant’s counsel was surprised, that surprise overtook him at the moment they testified, and he should then have asked for a continuance of the case, to enable him to take additional testimony on that subject. He cannot rightly go on and experiment with the result of the trial, and afterward expect the court to reopen the case for such trivial purposes.

3. The defendant counted strongly upon a letter written by the plaintiff husband to her, soliciting her to give him a quitclaim deed for the tract in dispute, as being a recognition of the defendant’s title, and consequently a defeat of plaintiff’s claim of adverse possession. 'The letter is clearly an effort of the writer to buy his peace, and cannot he justly construed as an admission of title in the defendant.

A careful reading of the testimony in the case has convinced us that the decision of the Circuit Court was right, and it is therefore affirmed.

Affirmed. Rehearing "Denied.

McBride, C. J., and Bean and Benson, JJ., concur.

Denied September 21, 1920.

Mr. S. M. Endicott and Mr. Walter C. Winslow, for the petition. Messrs. McNary, McNary & Keyes, contra.