Silvarer v. Hansen

The Court. Ejectment. The defendant Struve claims to have become the owner of a portion of the land described in the complaint by adverse possession. The defendant Hansen claims another portion of the land by virtue of a boundary line alleged to have been agreed upon by the plaintiff and himself in 1873.

1. The facts found by the court show that the defendant Struve made out a valid defense under the statute of limitations. The deeds under which he and his predecessors claimed were sufficient color of title, and these deeds, taken in connection with the evidence as to the character of the natural and artificial fences and the actual possession of the defendant, show the extent of the possession claimed by defendant, and that he was holding in good faith under claim of right in himself, and adverse to all others. (Wilson v. Atkinson, ante, p. 485; Smith v. Shattuck, 12 Or. 362; Oglesby v. Hollister, 76 Cal. 136; Grimm v. Curley, 43 Cal. 253; Tryon v. Huntoon, 67 Cal. 328.)

The court found that in 1864 Dunlap was in possession of the land claimed by defendant Struve herein, together with a tract of land adjoining the same on the [583]west; that in 1867 W. H. Patterson, who was the owner of said adjoining tract, entered into a contract in writing to sell and convey said tract to Dunlap, and in March, 1873, delivered to Dunlap a deed conveying said adjoining tract; that there has never been a fence between or dividing said tract and the parcel claimed by defendant, but that said parcel, with said adjoining tract, has always constituted a single body of land as a farm; that from the fall of 1864 to the end of October, 1873, Dunlap was in the actual possession and occupation of said body of land, including said parcel, and during all that time said land was inclosed and protected by a substantial inclosure throughout and around its whole circumference, and was resided on by said Dunlap and his family; that said land was cultivated and improved by him, and used by him for the ordinary purposes of husbandry and pasturage; that this possession and use by Dunlap was at all times open, notorious, uninterrupted, exclusive, under a claim of title in himself, and exclusive of any other right (except in said Patterson between the dates of the contract and the deed); that on October 27,1873, Dunlap conveyed to Struve the tract purchased from Patterson, and on October 31, 1873, conveyed the land to Struve, which is herein claimed by him; “that thereupon said Struve took actual occupation and possession of said premises, including said parcel herein claimed under said deeds, and from October, 1873, to the time of the commenee.ment of this suit, and ever since, he in like manner as said Dunlap had taken, possessed, occupied, cultivated, improved, and used the same, constituting, as before, a single body of land or farm, and inclosed and protected as before by a substantial inclosure, openly, notoriously, continuously, uninterruptedly, exclusively, under claim of title in himself, exclusive of any other right; that from 1864 to the time of the commencement of this suit the plaintiff, William Silvarer, and his grantor, Charles Silvarer, had actual notice and knowledge of the said