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Wirostek v. Johnson

June 21, 1973

WIROSTEK ET UX, RESPONDENTS,
v.
JOHNSON ET UX, APPELLANTS



Appeal from Circuit Court, Clackamas County. Dale Jacobs, Judge.

James W. Lock, Gresham, argued the cause for appellants. With him on the brief were Burns & Lock, Gresham.

Jack B. Schwartz, Portland, argued the cause for respondents. With him on the brief were Sabin, Newcomb, Sabin & Meyer, Portland.

In Banc. O'Connell, C.J.

O'connell

This is an action to recover possession of a strip of land occupied by defendants, who are owners of the land abutting plaintiffs' property. Defendants appeal from a judgment in favor of plaintiffs.

The facts are as follows. In 1961, W. C. Grimson and Hazel D. Grimson employed Gene A. Leuthold, a surveyor, to survey a tract of approximately 40 acres which they owned. The tract was rectangular in shape and was bounded on the south by Carl Borges Road. It was divided into eight parcels, seven of which were equal in size and dimension. Mr. Leuthold marked the corners of each parcel with iron rods and wooden stakes. As the northerly corners were uphill and approximately 1,000 feet from Carl Borges Road, Mr. Grimson tied red broom handles to each stake in order to make the corners more visible.

Defendants purchased the third parcel from the western boundary of the tract and received from the Grimsons a deed dated April 29, 1963. At the time of purchase defendants saw the stakes marking the southeast and southwest corners of their property. Mr. Grimson testified that he also showed them the stakes marking the northerly corners. Mrs. Johnson admitted that she knew there were stakes at the northeast and northwest corners of the property, and that she later saw them. Defendants' deed contained a metes and

bounds description which was followed by the parenthetical statement, "(According to Gene A. Leuthold survey of 1961)."

Plaintiffs purchased the parcel directly to the east of defendants' property. They received a contract from the Grimsons dated September 30, 1964, and a deed dated December 29, 1965. Their deed contained a metes and bounds description which was also followed by the parenthetical statement, "(According to Gene A. Leuthold survey of 1961)."

After purchasing their property defendants constructed a house and built a wire-fenced dog run just north and east of their house, together with a rock retaining wall. At that time plaintiffs asked Mr. Leuthold to "run a line" along their west boundary as determined by his 1961 survey. Mr. Leuthold's line showed that parts of defendants' dog run and rock wall were on plaintiffs' property. Plaintiffs requested defendants to remove the improvements to the extent that they encroached upon plaintiffs' property.

Defendants did not do so. Instead they hired Pacific Surveys to make a survey in order to establish the boundaries of their property. In 1967 Pacific Surveys concluded that Leuthold had erroneously located a center section line and as a consequence had placed the northwest corner of plaintiffs' property 30.64 feet west of its true position.

Defendants contend that they are entitled to have the boundary of their tract established in accordance with a description based upon the beginning point set by Pacific Surveys. Plaintiffs contend that the boundaries actually marked out on the ground in accordance with the Leuthold ...


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