Volume 19 — Oregon Reports

<p>'Public I,ands — Patent—Collateral and Direct Attack. — In an action of ejectment, a patent for land granted by the United States cannot be collaterally attacked; but it may be attacked by a direct proceeding in equity, based on mistake of the law in its issuance or fraud and imposition in its procurement.</p> <p>Same — Fraud—1Trusts—Injunction.—Under this rule, where it appeared that after A and B had filed upon separate adjoining tracts of land, A, without the knowledge of B, had his entry amended so as to coyer both tracts, notwithstanding B was and had been rightfully in possession of the tract entered by him, and by such means A fraudulently obtained a patent for B’s tract; held, that A would be considered a trustee of the legal title for B as to such tract, and that an action of ejectment to recover such tract brought by A against B would be enjoined.</p>

<p>Chattel Mortgage — Foreclosure—Sheriff.—Miscellaneous Laws Oregon, chap. 39, g 2, provides for the foreclosure of chattel mortgages in the manner provided by the mortgage itself, if the mortgage contains any provisions on the subject; otherwise, by the sheriff taking possession and selling. Held, that a sheriff cannot justify a possession taken by him under a mortgage providing that in case of default the mortgagee may take possession of the property and sell or otherwise dispose of it upon the ground of acting in his official capacity under directions from the mortgagee.</p> <p>Same — Filing—Priority.—Under the Oregon statutes in cases of successive chattel mortgages upon the same property, the one first filed is entitled to priority.</p>

<p>Appeal from the circuit court for Umatilla county.</p>

The respondent commenced an action against the appellant and one H. G. McDonald to recover an alleged balance of account between them and the Northwest Trading Company, claimed to have been assigned to the respondent.

The respondent commenced an action in said court against the appellant, a municipal corporation, for the recovery of damages.

S. Bean, judge. The respondent commenced suit in said court against the appellant to reform a deed to certain real property situated in said county.

S. Bean, judge. The respondent commenced an action against the appellants in the county court of Benton county to recover upon a certain note for the payment of money, executed by appellants to one J. C. Young for the sum of §350 and assigned to respondent.

B. Stearns, judge. This is a suit to enforce a number of liens for labor. It is alleged one Stronach had a contract with the defendant corporation to dig holes and place the poles therein and stretch the necessary wires on the same from, at or near the city of Portland to a point at or near Oregon City.

<p>Death After Judgment — Effect of on Right of Appeal. — A suit is suspended during the period between the death and the order granting a continuance, and this period is not to be deemed any part of the time limited for taking an appeal.</p> <p>Railroad Crossing — Duty of Traveler to Look and Listen. — It is the duty of a traveler to look and listen before attempting to cross a railroad track, and especially at a crossing known to him to be dangerous from its obstructed view and the conformation of its surroundings rendering it difficult to hear. ‘</p> <p>Evidence — Presumption, Where the Record is Silent. — Where there is no direct evidence that a traveler did not stop, look and listen before he entered upon the crossing, the presumption of law is that he did his full duty and observed the precautions which it prescribed.</p> <p>Railroad Crossing — Mutual Duties. — While it is the duty of travelers when about to cross a railroad track to exercise proper care and caution by using their sense of sight and hearing, it is likewise the duty of those to whom is committed the control and supervision of the movements of the train to exercise such care and caution at such crossings, and to give the warning signals so as to prevent injury to those traveling on the highway.</p> <p>Refusal of New Trial — Not Appealable Error. — The granting or refusing of a motion for a new trial rests wholly in the discretion of the court and cannot be reviewed upon appeal.</p>

P. Boise, judge. This action was brought against the defendants for contribution.

S. Bean, judge. This is a suit in equity to enjoin tbe enforcement of a judgment in an action of ejectment and to require tbe present defendant to convey to tbe plaintiff tbe real prop-' erty in controversy. Tbe defendant bad a decree in bis' favor in tbe court below, from wbicb tbis appeal is taken. Tbe facts sufficiently appear in tbe opinion.

<p>Appeal from Benton county: R. S. Bean, judge.</p>

■ This is an appeal from the taxation of costs. The action was originally commenced in the justice’s court for Salem precinct to recover $100 for work and labor alleged to have been done on the brick building situate at the northwest comer of State and Commercial streets, in the city of Salem, Oregon, now occupied by Gibson & Singleton as a drug store, and for making drawings and specifications therefor, and overseeing and superintending the work thereon, and for altering…

<p>Appeal from Coos county: R. S. Bean, judge.</p>

<p>Bill op Exceptions — What is Not. — The stenographic notes taken at the trial’ of a cause, transcribed in full and copied in the record and signed by the trial judge, to which are prefixed a statement calling it a bill of exceptions, and the further-statement that the folJ owing exceptions will be Telied upon by the defendant,, followed by a reference to the testimony of sundry witnesses, giving the page; all the cross-examination of a certain witness on a particular subject; all the testimony introduced on the part of the defendant; charge of the court to the jury,, giving pages and certain lines, — do not constitute a bill of exceptions, or present anything for review on appeal.</p>

<p>Water Eights — Argument as to UsE.^-An agreement between parties who have settled upon lands in the vicinity of a stream of water capable of being utilized for the purposes of irrigation as to the appropriation of the water forsuch purpose and as to the relative quantity which each shall be entitled to use; and such agreement has been acted upon for a long time by the parties and a violation of it by any of them would produce irreparable damage to others, will be enforced in a court of equity.</p> <p>Contiguous Owners — Mutual Use op Water — Tacit Agreement. — Where certain parties settled upon lands as above mentioned and their lands would have been of little if any value without irrigation, and they cooperated in constructing dams and digging ditches for the purpose of conveying the water on to their respective parcels of land in order to irrigate them; held, in the absence of direct proof to the contrary, that it was evidence of a tacit agreement between them that each should he entitled to enjoy an equal share of the water which the stream afforded, which a court of equity in a proper case would enforce.</p>

<p>Pleading — Uncertain Allegation — Remedy.—Where the allegations of a complaint indicate a fact, and evidence thereof is admitted under it, an exception to its admission is not tenable although the allegations regarding the fact are vague and indefinite. The remedy of the defendant in such a case is by motion to compel the plaintiff to make the complaint more definite and certain.</p>

H. Bibd, judge. The information upon which the defendant was convicted before the recorder of the city of Prineville, is in substance as follows: ‘ ‘The said Linn W. Woods, on the tenth day of February, 1889, in the town of Prineville, within the corporate limits thereof, did furnish Ales. Conley intoxicating liquors, to wit, beer and whisky; the said Alex.

P. Boise, judge. This is a suit for partition. The complaint alleges that the plaintiff and the defendants, with the exception of the defendant Ellen Savage, are the owners in fee simple and tenants in common and hold and are in possession of the lands sought to be partitioned, and which are particularly described in the complaint.

<p>Petition — Seisin.—A plaintiff cannot bring a suit for the partition of land unless he be in the possession thereof. Such suit will not lie against one in the actual possession, who is holding adversely to the plaintiff. In such case the plaintiff must regain possession by action, if necessary, before he can maintain a suit for partition.</p>

S. Bean, judge. This was an action to recover on certain promissory notes made by divers persons, and payable to the order of the plaintiffs. The notes were made and executed in the usual form of negotiable paper.

P. Boise, judge. Martin Werts died in the county of Linn on tbe thirtieth day of September, 1888. The deceased at the time of his death was an inhabitant of said county, and left real and personal property owned and possessed by him in his lifetime, and left an instrument of writing in the form of a will and testament which purported to dispose of said property.

D.Shattuck, judge. This is an action to recover damages for the conversion of certain chattels.

S. Bean, judge. The plaintiff sues as guardian of Charles and Henry Bingham, and the object of the suit is to foreclose a mort-1 gage made by G. H. Stevenson and wife and F. M. Gab-bert and wife, on October 4, 1886, and made to secure the payment of a promissory note for $2,313.21, and $125 as reasonable attorney fees. The defendants Christy & Wise are alleged to have some interest in the mortgaged premises subsequent and subject to the plaintiff’s mortgage.

D.Shatttjck, judge. One Edwin Hardy obtained a judgment for about ®5,000 against Dignó and Watson, and being unable to obtain satisfaction of an execution issued on said judgment, instituted proceeding supplementary to execution.

<p>Appeal from Columbia county: F. J. Taylok, judge.</p> <p>Moses v. S.P.R. R. Co., 18 Or. 385, approved and followed.</p>

R, Webster, judge. The appellant commenced an action in the said circuit court against the respondent Birdsey to recoyer the possession of certain personal property, consisting of eight head of thoroughbred cattle, claimed to be of the value of $2,700.

J. Taylor, judge. The respondent commenced an action at law in the said circuit court against the appellants upon two promissory notes executed by them to the respondent and bearing date February 14, 1887, one of which was due in six months, and the other eighteen months from date; each bearing interest at the rate of ten per cent per annum; and upon which he claimed to be due the principal sum and interest, and the sum of $110 attorney fees.

R. Webster, judge. The defendant was jointly indicted with one D. A. Seo. t under a charge of selling spirituous liquors without a license. There was a failure in arresting Scott, and defendant went to separate trial and was convicted.

R. Webster, judge. This controversy has arisen in the course of the settlement of the estate of Julius Raspot, deceased. The defendant Raphael Morat is the executor of the last will of said deceased, and the plaintiff is endeavoring to secure the payment of a claim, in the form of a judgment, which he obtained before a justice of the peace in Jackson county against said Julius Raspot in his life-time.

<p>Appeal from Jackson county: L. R. Webster, judge.</p>

Taylor, judge. This is a suit to foreclose a lien for labor performed and material furnished at the request of the defendant Rowe on the premises described in the complaint, being a parcel of ground situate in the city of Astoria. Hawes owns the lot in fee, but leased the same to Rowe for the period of five years from the first day of November, 1888.

S. Bean, judge. This suit comes into this court from a decree in favor of the respondent and against the appellant. The litigation commenced on the first day of September, 1888.

A. Fee, judge. The appellant commenced an action in the circuit court to recover possession of certain real property, consisting of a tract of land situated in said county of Union, claiming to be the owner in fee of an undivided five-nintbs interest therein as tenant in common with four other parties named in the complaint, who were alleged to be the owners of the other four-ninths thereof.

A. Fee, judge. The defendant was jointly indicted with, others, and convicted of the crime of larceny of a cow, charged to have been committed on the fourteenth day of January, 1889. One Jed Beal, a co-defendant, testified as an accomplice to the particulars of the stealing of the cow by the defendant and himself.

A. Fee, jndge. This is an action of replevin to recover about fifty head of cows. The complaint is in the usual form.

A. Fee, judge. The appellant commenced a suit against the respondents in the cireuit court to reform a deed to real property, executed by the respondent McGarry to appellant; also to restrain the other respondents from selling real property which she claimed was intended to be conveyed to her by such deed.

A. Fee, judge. This is an action on account stated in -which -the defendants as husband and wife were sued jointly. The defendant Thomas P. Page made default, but his wife, the defendant Frances E. Page, answered for herself only. Upon issue being joined, after a trial, a verdict and judgment was rendered against the defendant Frances E. Page for the amount demanded, from which the present appeal is taken

Jas. A. Fee, judge. The appellant commenced an action against the respondents for the recovery of money.

H. Bird, judge. This is an action for trespass alleged to have been committed by the defendant on the plaintiff’s lands in Gilliam connty, Oregon.

A. Fee, judge. This is an action founded on two promissory notes, which are alike in every particular except as to amounts, time of payment, dates, etc. One is for §1,000, upon which a payment of §1,036.32 is indorsed, and the other is for §150. Each bears interest at the rate of ten per cent per annum until paid, and each note is past due.

H. Bird, judge. This is an action of replevin to recover certain specific personal property alleged to be of the aggregate value of $1,834.96 and for $466 damages for the wrongful taking and detention thereof. The plaintiff recovered a verdict for $1,037.93 damages, upon which judgment was entered, from which the defendants have appealed.

A. Fee, judge. Tbe grand jury of Union county, Oregon, returned into eourt tbe following indictment, omitting tbe caption and introductory part: “Henry Wrigbt and James Allen are accused by tbe grand jury of tbe county of Union, and State of Oregon, by tbis indictment, of tbe crime of burglary, committed as follows: Tbe said Henry Wrigbt and James Allen, tben and there, acting together, on tbe twenty-eighth day of November, A.D., 1888, in tbe county of Union and State of…

A. Fee, judge. On tiie twenty-eighth, day of March, 1888, the defendant insured the plaintiff’s house and certain household goods therein against loss or damage by fire. On the ninth of July of the same year said house and goods were -destroyed by fire, and this action is brought to-racover the amount of such policy, which is $350. The plaintiff-had judgment-for tbe full amount claimed, from which this appeal is taken. The complaint is in the usual form in such cases.

Fee, judge. This was an action in ejectment to recover certain lands described herein. The verdict and judgment were for the defendant, from which this appeal has been brought. The plaintiff deraigns his title through a deed of conveyance made by the governor, the secretary of state and the treasurer, as a board of school land commissioners, for the land in dispute, to H. J. Meacham, dated on the fifteenth day of November, 1871, and recorded on the sixth day of June, 1888.

H. Bird, judge. This action was commenced in a justice’s court in the city of Arlington before the recorder of that city, who is ex officio a justice of the peace within said city, where the plaintiff recovered a judgment for $17. The judgment was entered on January 3, 1889.

H. Bird, judge. This is an action to recover damages for the killing of certain sheep by the defendant railroad, and is based on the statute.

<p>Appeal from Grant county: M. D. Clifford, judge.</p>

A. Fee, judge. This is an action of ejectment, brought by the plaintiff against the defendant to recover the land described in the complaint. Both parties deraign title to the land from one Thus. McKenzie, deceased, — the plaintiff by deed, and the defendant' as an heir at law. The cause was tried without the intervention of a jury, and judgment went for the plaintiff, from which this appeal is brought.

H. Bird, judge. The appellant commenced a suit in said court to have the respondent decreed to be the holder of the legal title to certain land in trust for appellant, and to execute a deed of conveyance of all its rights, title and interest therein to appellant, with such other and further relief as he might be entitled to in equity.

A. Fee, judge. Tbe respondent sued ont a writ of review from the circuit court to the county court to review certain proceedings had in the latter court for the laying out of a county road in said county in compliance with the following petition signed by O. H. Fay and more than twelve others: “To the Honorable the County Court of the State of Oregon for Union County: The petition of the undersigned householders of Union county, Oregon, residing in the vicinity of the road…

A. Fee, judge. The action was to recover damages for the killing of a stallion by the defend ant railroad, belonging to the plaintiff, based upon the act of 1887, and found in Hill’s Code, §§ 4044 to 4049, inclusive. Upon issue being joined, a trial was had, and the plaintiff recovered judgment, from which this appeal is brought.

Union county: Jas. A. Fee, judge. The respondent herein, a private corporation, commenced an action against the appellants to recover possession of certain real property situated in said Union county, alleging that they wrongfully withheld from said respondent the possession thereof. The appellants denied the allegations contained in the complaint and alleged ownership of the property in themselves. A reply was filed denying the allegations of new matter set up in the answer.

D. Clifford, judge. The grand jury of Grant county returned into court the following indictment against the appellant: “D. Sterritt is accused by the grand jury of Grant county and State of Oregon by this indictment of the crime of unlawfully moving sheep infected with scab from place to place without first having obtained a traveling permit therefor, committed as follows: The said D. Sterritt, on the first day of April, A. D. 1889, in the county of Grant and State of…

H. Bird, judge. This is an action to recover damages for alleged negligence.

A. Fee, judge. The material portion of the complaint is as follows: “That heretofore, to wit, between the first day of May, 1886, and the first day of January, 1887, at Union county, State of Oregon, the plaintiffs, at the special instance and request of the defendant, and for its use and benefit, furnished a large amount of material and machinery in, about and for tbe rebuilding, construction and repair of a certain flouring mill of the defendant, and, at its special…

A. Fee, judge. This is an action to recover damages, and the complaint contains six counts, five of which are to recover damages for killing and injuring stock belonging to the plaintiff by moving trains of the defendant railroad company, and the last for the destruction by fire of grass, etc., and to which further reference will not be made, as no error is suggested.

J. Taylor, judge. The appellant brought suit against the respondent to enjoin him from erecting an alleged obstruction to the navigation of a certain slough in said county termed by bim “Vincent’s slough.” He alleged ownership in fee and possession of the west half of the northwest quarter of section 15, township 7 north, of range 9 west, in said county; that for the last five years he had occupied said premises as a home; that they are situated about three quarters of a…

<p>Judgment — Lapse op Time — Presumption op Payment. — In this State a judgment upon which no execution has been issued, nor attempt made to enforce the same for twenty years, is presumed to have been paid.</p> <p>Presumption — Efeect op. — In such case, it is a presumption of law and can be rebutted only by some positive act of unequivocal recognition, like part payment, or a written admission, or at least a clear and well-identified promise, intelligently made, within the period of twenty years.</p>

A. Fee, judge. The complaint set forth, ten causes of action, eight of which grew out of the alleged injury or killing of stock 'belonging to the plaintiff, and the other two hy reason of fires alleged to have been set out by engines belonging to the defendant.

<p>Appeal from Union county: Jas. A. Fee, judge.</p>

B. Stearns, judge. This is an appeal from a second conviction of the appellant for the crime of murder in the first degree; the first conviction having been reversed by this court at the October… Held: without reference to the consequences, that a verdict wholly unsupported by evidence would not be reviewed on appeal.

E. Webster, judge. This was a suit in equity brought by the plaintiff and appellant to have a lease cancelled, and for damages, and for a temporary injunction pending the suit. A large amount of evidence was taken; and, after a full hearing, the court found that the evidence failed to sustain the complaint and dismissed the suit. From the decree rendered herein this appeal is taken.

P. Boise, judge. This suit is prosecuted by the respondent to secure a partition of certain personal property consisting mainly of grain grown upon the defendant’s farm and some land leased of other parties. The grain was raised by the plaintiff and one Rickey as partners. During all of the times mentioned in the pleadings, Rickey was indebted to the defendant in a large amount of money.

B. Ison, judge. The object of this suit is to enjoin the defendant from disturbing the plaintiff’s use of certain water taken out of Connor creek in Baker county, Oregon, and to establish and quiet the plaintiff’s title thereto.

Petition for Rehearing. — This was an appeal from the circuit court of Josephine county. Upon the hearing the court announced its decision as follows: “The only question of law arising upon this record we considered and decided in Wood v. Rayburn, 18 Or. 3. We see no reason to depart from the conclusions there announced. After a careful examination of the evidence, we have reached the same conclusions that the court below did.

D. Shattuck, judge. This is an action to recover damages for negligence.

L. B. Stearns, judge. The defendant was indicted and convicted of the crime of embezzlement, from which judgment this appeal is taken.

<p>•Contract&~When Several. — Where an agreement embraces several distinct subjects which admit of being separately executed and closed, and the facts show that they were so separately performed, and the compensation agreed upon and apportioned to each of them, such an agreement is to be taken severally and a right of action accrued as to each of them when the services were rendered.</p> <p>.Statute op Limitations — Eight op Action. — The statute of limitations begins to run when the right of action is complete, and this being so, a right of action accrued upon each, of these matters when the services were rendered and each transaction .closed.</p> <p>Payment-Appropriation. — Where there are several of such distinct claims foi services a payment appropriated upon each of them will interrupt the running ol the statute of limitations.</p> <p>Bindings — Epfect of. — The findings of a referee are conclusive as to the facts found there is any evidence before him having a tendency to establish such facts.</p>

D. Shattdck, judge. This action was originally commenced in the justice’s court of East Portland, where the plaintiff had judgment, from which an appeal was taken to the circuit court. Upon respondent’s motion the appeal was dismissed, on the ground of the insufficiency of the notice, from which last-named judgment this appeal was taken.

<p>Appeal from Multnomah county: E. D.Shattuck, judge.</p>

D. Shattuck, judge. The only question presented on this appeal is the sufficiency of the plaintiff’s complaint, which is as follows: “ Johanna Caspary and J. Octavia Caspary, Plaintifffc, v. The City of Portland, Defendant. “Johanna Caspary and J. Octavia Caspary, the plaintiffs in this action, complain of the defendant herein and. for cause of action allege: That the defendant, the City of Portland, is a municipal corporation created by and existing under a law of the State…

<p>Appeal from Multnomah county: E. B. Shattuck, judge.</p>

D. Shattuck, judge. The facts in substance are, that on the seventh day of May, 1887, one John Fenstermacher died in Multnomah county intestate, leaving certain and personal property described herein; that thereafter, on the twentieth day of June, 1887, J. K. Wait was duly appointed administrator of the estate of the said intestate by the county court, and the said estate was duly administered upon and finally settled up by him, and be discharged on the twentieth day of May,…

D.Shattuck, judge. This is an appeal from an order of the circuit court refusing to relieve the defendant and appellant from payment of a judgment recovered of him by the plaintiff and respondent, wherein respondent was adjudged to be the owner of certain real property in controversy in an action of ejectment, brought by respondent against the appellant to recover certain town lots, etc. The cause was heard by the court by consent without a jury, and thereafter made and…

B. Stearns, judge. The final decree in this case was rendered on the thirtieth: day of September, 1890. On the same day the appellant served his notice of appeal, and filed his undertaking on appeal. On the sixth day of October, 1890, the respondent excepted to the sufficiency of the sureties and served notice thereof upon appellant’s counsel, who thereupon gave notiee that the sureties would appear at once to justify.

The plaintiff declares upon a contract as follows. “CONTRACT. “This agreement, made and entered into this twenty-sixth day of November, A. D. 1889, by and between John Cort, proprietor Standard theatre, Seattle, Washington, party of the first part, and Gschwander Trio, parties of the second part — witnesseth: That the party of the first part engages the parties of the second part for twelve weeks, commencing on December 9, 1889, and continuing to March 2, 1890, to enact…

<p>Appeal from Multnomah county: E.D. Shattuck, judge.</p>

<p>Wrongdoer — When Liable. — It is -well settled that a -wrongdoer is liable for an injury which resulted as the natural and probable consequences of his wrongful act, and which he ought to have foreseen in the light of surrounding circumstances.</p> <p>Jury — Proximate Cause. — It is ordinarily the province of the jury to ascertain whether the injury is the natural and proximate cause of the wrong complained of.</p> <p>Duty of Master to Observe Care. — It is the duty of the master to observe due care and not to expose his servants to unreasonable risks; and when the nature of the business requires it, to make needful rules or regulations for its safe conduct so as to protect those in his employment against accidents.</p> <p>Facts — When for the Jury. — It is not for the court to speculate upon the facts, but to submit them to the jury, if they tend to support the cause of action.</p>

B. Stearns, judge. The defendants were jointly indicted, tried and convicted of the crime of selling spirituous liquors without first having obtained a license therefor, as provided in the act of 1889. The chargingpart of the indictment is as follows: M. Tamler and Jos.

D. Shattuck, judge. There is no bill of exception in this record, and yet the only question which the appellant seeks to make on the appeal arises out of the effect of certain statements made by the plaintiff when on the stand as a witness in his own behalf. On his cross-examination, defendant’s counsel asked him to estimate the amount of his damages, and the reporter certifies that he answered one thousand dollars. The jury gave a verdict for f1,495.

D.Shattuck, judge. Tbe plaintiff recovered a judgment before tbe justice of tbe peace of North Portland precinct on tbe twelfth day of December, 1889. Within tbe time allowed by law the defendant served a notice of appeal from tbe judgment, gave a proper undertaking, and tbe justice allowed tbe appeal in bis docket.

D. Shattuck, judge. The substance of the complaint is, that on September 7, 1885, plaintiff and defendant were partners in a general retail grocery business in Portland, Oregon, under the firm name of Bailey & Miller; that on that day they were indebted to divers persons, and among others to Wadhams & Elliott in about the sum of §1,500, about one-half of which was secured by note and the remainder an open account; that on that day plaintiff and defendant dissolved said…

<p>Appeal from Multnomah, county: L. B. Stearns, judge.</p> <p>This is a suit to establish the boundary or dividing line between lots 3 and 4, block 116, in the city of Portland, and brought under the act of the legislature ‘ ‘providing a mode of procedure in the matter of ascertaining, determining, establishing and marking boundary lines, where the same are in dispute, between adjacent lands.” Laws of 1887, 53. Plaintiff and respondent is the owner of lot 4, and defendant and appellant of lot 3.</p> <p>The complaint alleges that there is a dispute as to the boundary line between these lots, and describes the location of the line as claimed by plaintiff. The answer denies that there is any dispute as to this boundary line, but sets out what defendant claims to be the correct line, which is the same as the line claimed by plaintiff, except that one of defendant’s buildings projects over some sixteen or eighteen inches on a portion of lot 4, and she claims that her line should be so run as to include that part of lot 4 covered by tbis building. The answer also alleges title by adverse possession to all that part of lot 4 cohered by defendant’s buildings, being a strip sixteen inches wide at one end and nineteen inches at the other and about twelve feet long. The reply denies the adverse possession by defendant of this strip of land, and upon this issue the case was tried. There is no dispute, as disclosed by the evidence, between the parties to this suit as to the location of the line dividing lots 3 and 4; nor is there any dispute as to the boundary lines of that portion of lot 4 to which defendant claims to have derived title by adverse possession; but the real and only controversy is , as to the title to that portion of lot 4 claimed by defendant.</p>

B. Shattuck, judge. This is a suit in equity brought by the plaintiff to quiet title and to bave a trust declared in certain lands described and lying in East Portland standing in the name oí his wife, Elizabeth Taylor, now deceased.

Multnomah, county: E. D. Shattuck, judge. This is a suit brought under the statute of 1887 (Hall’s Code, §§ 506, 510,) by the respondents and against J. R. Brigham, A. D. Tufts, Henry Fleckenstein, S. Julien Mayer, David Cole, D. Cavanaugh, Peter Esser, Mary Soderstrand and the city of Portland, to settle a disputed boundary between the King and Lownsdale donation land claims in Multnomah county, Oregon.

D.Shattuck, judge. On April 30, 1888, the parties to this action entered into the following contract in writing: “Portland, Oregon, April 30, 1888. ‘Know all men by these presents: That Messrs.

D.Shattuck, judge. This action is founded upon the following agreement in writing: “This agreement, made at Portland, Oregon, this twenty-first day of June, 1889, between Borthwick & Frame, parties of the first part, and S. M. Barr, party of the second part — witnesseth: Said party of the first part are to furnish cars sufficient to carry 1,500 cords of wood; said cars to be placed on what is known as Barr’s spur on the Oregon Railway & Navigation Company’s railroad, and the…