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Ryburn v. Marshall

March 23, 1973

RYBURN ET UX, APPELLANTS,
v.
MARSHALL ET UX, RESPONDENTS



Appeal from Circuit Court, Columbia County. Donald L. Kalberer, Judge.

George G. VanNatta, St. Helens, argued the cause for appellants. On the brief were VanNatta & Petersen, St. Helens.

Harold L. Olsen, St. Helens, argued the cause for respondents. With him on the brief were Vagt & Olsen, St. Helens.

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

O'connell

This is an action of ejectment in which plaintiffs seek to recover possession of one half of a strip of land formerly used as a railroad right-of-way. Recovery is also sought for injury to the premises by defendants in the course of ousting plaintiffs from the strip. Plaintiffs claim the title to the property on the basis of adverse possession. Plaintiffs appeal from a judgment on a verdict for defendants.

The property in dispute is the southern one half of a strip which was a part of a railroad right-of-way owned in fee by the Goble, Nehalem & Pacific Railroad and used until 1930 by the Clark & Wilson Lumber Company for logging purposes. In 1931 the railroad rails were removed and Edward Orr, who owned property to the north of the strip, fenced in that segment of the entire grade which was adjacent to his southern boundary.

In 1940 Edward Orr sold his property to Mrs. Swatman, and this property was subsequently conveyed to Mrs. Swatman's son and daughter-in-law, Daisy Swatman, by deed dated July 30, 1947. The description

in the 1947 deed recited that property "lying north of the right-of-way of the railroad of the Clark & Wilson Lumber Company" was being conveyed.

By means of a land sale contract executed in June of 1965, Daisy Swatman sold to the plaintiffs the land she had received from her mother-in-law. This contract, like the aforementioned deed, recited that land to the north of the right-of-way was being conveyed. On August 24, 1971, after this controversy had arisen, Daisy Swatman conveyed by bargain and sale deed all of her interest in the railroad grade to the plaintiffs.

Meanwhile, record title to the grade passed from Clark & Wilson Lumber Company by mesne conveyances to Investment Management Corporation. In March of 1971, defendants purchased property to the south of and adjacent to the railroad grade, and after an argument arose between defendants and plaintiffs over ownership of the grade, defendants purchased the southern one half of the grade from Investment Management Corporation on August 20, 1971. Shortly thereafter defendants rolled back a length of the fence originally constructed by Edward Orr, entered the disputed strip and commenced construction of a fence down the centerline of the railroad grade.

Plaintiffs base their claim of title to the entire grade on the ground of adverse possession continued by themselves and their predecessors in interest for the statutory period of ten years. (ORS 12.050) In their answer, defendants deny ownership of the grade in plaintiffs and allege their own title to the southern one half of the grade.

Plaintiffs adduced evidence purporting to prove adverse possession during the statutory period and defendants countered ...


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