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Hurd v. Byrnes

March 1, 1973

HURD ET UX, RESPONDENTS,
v.
BYRNES, APPELLANT



Appeal from Circuit Court, Klamath County. L. Orth Sisemore, Judge.

H. F. Smith, Klamath Falls, argued the cause and filed briefs for appellant.

Robert S. Hamilton, Klamath Falls, argued the cause for respondents. With him on the brief were Beddoe & Hamilton, Klamath Falls.

In Banc. O'Connell, C.J. McAllister, J., concurs in the result.

O'connell

This is a suit to enjoin defendant from trespassing upon a parcel of land to which plaintiffs claim title. Plaintiffs also pray for damages as a result of the alleged trespass. The trial court entered a decree in favor of plaintiffs, restraining defendant from entering upon the property and awarding plaintiffs damages in the amount of $1,500. Defendant appeals.

The property in question is a 25-foot wide strip of land running from plaintiffs' land through property owned by defendant, and thence through property owned by Schubert and finally to The Dalles-California Highway, now known as Highway No. 97. The

relative locations of these properties may be better visualized with the help of the following diagram:

[]

Until March 16, 1940, T. B. Watters held title to all the lands now owned by plaintiffs, defendant, and Schubert. On that date Watters conveyed by warranty deed the property now owned by defendant and Schubert to Leonard Hamilton. The deed described the property and then included the following language:

"RESERVING AND EXCEPTING From said property a parcel of land 25 feet in width, being 12 1/2 feet on each side the following-described center line: [Description omitted]

"Grantors propose to construct an irrigation and drainage ditch on said property reserved, and in this connection grantors further reserve unto themselves, their heirs, administrators and assigns, ...


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