CHAPTER X.

OF ASCERTAINING AND ESTABLISHING BOUNDARIES.

§ 518. Suit May be Brought to Establish Boundary.

In any case where any dispute or controversy exists, or may hereafter arise, between two or more owners of adjacent or contiguous lands in this state, concerning the boundary lines thereof, or the location of the line or lines dividing such lands, either party or any party to such dispute or controversy may bring and maintain a suit in equity in the circuit court of this state in the county where such lands, or some part thereof, are situated, for the purpose of having such controversy or dispute determined, and such boundary line or lines, or dividing lines, ascertained and marked by proper monuments upon the ground where such line or lines may be ascertained to be, and established in such suit. [L. 1887, p. 53, § 1; H. C. § 506.]

This act was intended to give courts of equity jurisdiction in cases of disputed boundary, where a dispute or controversy exists as to the boundary merely, without regard to any other equity: Love v. Morrill, 19 Or. 545, 24 Pac. 916; King v. Brigham, 23 Or. 270, 31 Pac. 601, 18 L. R. A. 361; Dice v. McCauley, 22 Or. 459, 30 Pac. 160.

But the jurisdiction under this section is limited to the ascertainment of boundaries; it does not give the court of equity jurisdiction to determine questions of title: Love v. Morrill, supra; King v. Brigham, supra; School Dist. v. Price, 23 Or. 294, 31 Pac. 657. It therefore is constitutional within the provision that the parties can not be deprived of their right of trial by jury: King v. Brigham, supra.

Equity can not determine a claim of title by adverse possession to the land between the lines claimed by the respective parties to be the correct lines: School Dist. v. Price, supra.

Nor has it jurisdiction where the question in dispute is which of two lines was meant by the description in a deed, for this simply is determining the title to the land between the two lines: Miner v. Caples, 23 Or. 303, 31 Pac. 655.

RES JUDICATA.-Where a boundary line has been settled in a former suit in which the controversy was as to its location and not as to the title to the strip of land lying between the different lines claimed by the parties, the title to the strip, not being directly in issue, is not adjudicated by the determination of the boundary, and such suit is no bar to a subsequent suit to quiet title to the strip in question: King v. Brigham. 23 Or. 262. 31 Pac. 601, 18 L. R. A. 361. APPEAL.-Where the decree is reversed

because the evidence is largely directed to the issue of title which could not properly be tried in such a suit, the cause will be remanded to enable the parties to segregate the evidence, where it is so intermingled that the reviewing court can not do so, and if necessary to adduce new evidence bearing on the proper issue: School Dist. v. Price, 23 Or. 294, 31 Pac. 657.

EVIDENCE.-Where the question as to the disputed boundary rests wholly on facts and there are circumstances inherent in the case of weight and importance which are corroborated in substance by witnesses, whose long residence in the neighborhood and opportunity to know give value to their testimony; held sufficient to establish such boundary: Bewley v. Chapman, 16 Or. 402, 18 Pac. 489.

Courses and distances must yield to fixed monuments, and when they are inconsistent, the monuments called for in the deed are paramount: Anderson v. McCormick, 18 Or. 301, 22 Pac. 1062.

The location of lines and monuments on the ground will control over courses and distances: King v. Brigham, 19 Or. 560, 31 Pac. 601; Vandusen v. Shively, 22 Or. 64, 29 Pac. 76; Goodman v. Myrick, 5 Or. 65; Lewis v. Lewis. 4 Or. 177; Robinson v. Laurer, 27 Or. 310, 40 Pac. 1012, and collection of cases in the footnote.

Where it is claimed that lines and monuments do not agree with courses and distances, evidence of their actual location must be so clear and satisfactory as to establish that fact to the entire satisfaction of the court, and place beyond question the actual location of the lines or monuments: King v. Brigham, 19 Or. 560, 31 Pac. 601.

§ 519. Pleadings in Suits to Establish Boundaries.

The complaint in such suit shall be sufficient, if it appears therefrom that the plaintiff and defendant or defendants are owners of adjacent lands, some part of which is in the county in which said suit is brought; that there is a controversy or dispute between the parties concerning their boundary or dividing line or lines, and it shall not be necessary to set forth the nature of such dispute or controversy further than that the plaintiff shall describe the

boundary or dividing line as he shall claim it to be. The defendant in his answer shall set forth the nature of his claim, with reference to the location of the line in controversy. [L. 1887, p. 54, § 2; H. C. § 507.]

$ 520. Proceeding Analogous to that in Other Suits.

The mode of proceeding under this act shall be analogous to that of other suits in equity: Provided, that at the time of entering the decree fixing the true location of the disputed boundary or dividing line the court shall appoint three disinterested commissioners, one of whom shall be a practical surveyor, and shall direct said commissioners to go upon the lands of the parties and establish and mark out upon the grounds, by proper marks and monuments, the boundary or dividing line as ascertained and determined by the court in its decree. [L. 1887, p. 54, § 3; H. C. § 508.]

COMMISSION TO LOCATE DISPUTED BOUNDARY.-It is error at the time of entering a decree for the court not to appoint a commission, as required by this section, to mark it on the ground, although the evi

dence shows that the boundary was already plainly indicated by a fence: Robinson v. Laurer, 27 Or. 315, 40 Pac. 1012; Vandusen v. Shively, 22 Or. 67, 29 Pac. 76.

§ 521. Oath and Duties of Commissioners.

Before entering upon the discharge of their duties, the said commissioners shall make and file their oath in writing, to faithfully and impartially perform their duties as such commissioners, and after designating the said line by proper marks and monuments, they shall file, in said court and cause, a report of their doings as such commissioners, and the same shall be, when approved or confirmed by the court, a part of the judgment roll in said cause. [L. 1887, p. 54, § 4; H. C. § 509.]

§ 522. Their Report.

The report of the commissioners may be confirmed by the court, upon written motion of either party to such suit, whenever it shall appear to the court that said motion was served upon the adverse party two days before the presentation thereof, and that no exceptions have been filed to said report within two days after said service. If exceptions are filed as aforesaid, to said report, said exceptions may be heard with the motion to confirm, and the court may confirm, modify, or set aside said report, as shall seem just, and in the latter case may appoint a new commission or refer the matter to the same commissioners, with appropriate instructions. [L. 1887, p. 54, § 5; H. C. $ 510.]

II.

OF OFFER TO COMPROMISE, AND THE INSPECTION OF
WRITINGS

532

§ 523. This Title Applies Both to Actions and Suits.

The provisions of this title shall apply to the proceedings in both actions and suits, except as herein otherwise or specially provided. [L. 1862; D. Cd. § 502 ; H. C. § 511.]

§ 524. Lost Papers, how Supplied.

If an original paper or pleading be lost, or withheld by any person, the court or judge thereof may order a copy thereof to be filed and used instead of the original. [L. 1862; D. Cd. § 503; H. C. § 512.]

LOST PAPERS, HOW SUPPLIED.-An appellant must bring into the appellate court a perfect record. In case of loss or destruction of the originals, they may be supplied by copies embracing every paper necessary to show that the original appellate tribunal had jurisdiction. If such jurisdictional papers are not supplied, the appeal must be dismissed: Wolf v. Smith, 6 Or. 74. So where the appellant fails to serve and file the abstract of record required by the rules of the court, though part of the record

§ 525. Successive Actions or Suits.

has been lost, and no effort having been made within a reasonable time to supply the missing papers, the appeal will be dismissed: Close v. Close, 28 Or. 108, 42 Pac. 128. To the same effect, see In re Plunkett's Estate, 33 Or. 418, 54 Pac. 152.

The sworn copy for an original exhibit that has been lost or destroyed can not take the place of a certified copy by the clerk, as the law requires: Corbett v. Bauer, 10 Or. 340.

Successive actions or suits may be maintained upon the same contract

or transaction, whenever, after the former action or suit, a new cause of action or suit arises therefrom. [L. 1862; D. Cd. § 504; H. C. § 513.]

§ 526. Consolidation of Actions or Suits.

Whenever two or more actions or suits are pending at one time, between the same parties and in the same court, upon causes which might have been joined, the court may, upon the motion of the defendant, order the same to be consolidated. An action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal. [L. 1862; D. Cd. § 505; H. C. § 514.]

ACTION OR SUIT PENDING.-The decree of the lower court is operative for all purposes during the appeal, as well as the period allowed for taking it. This provision, as regarding a suit pending, does not have the effect of suspending the effect of a judgment or decree as an estoppel, or a bar during the period allowed for an appeal: Day v. Holland, 15 Or. 468, 15 Pac. 855;

Shirley v. Birch, 16 Or. 16, 18 Pac. 351; Neal v. Foster, 34 Fed. 500.

If, after judgment in the lower court, a party dies, the suit is pending in the sense that the executor or representative must apply to the lower court to be substituted for the deceased party in order to take an appeal from such judgment: Dick v. Kendall, 6 Or. 167.

§ 527. When Court has Jurisdiction of Natural Person.

No natural person is subject to the jurisdiction of a court of this state, unless he appear in the court, or be found within the state, or be a resident thereof, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached; but this section is not to be construed to limit the power of the courts of this state to declare a marriage void, or a dissolution thereof, when the defendant is a nonresident of the state, in the cases provided in chapter VIII of title VI. [L. 1862; D. Cd. § 506; H. C. § 515.]

BY AP

JURISDICTION OBTAINED PEARANCE: See § 63, ante. On appearance in pursuance of personal service of summons, see §§ 65 and 66, ante. Jurisdiction on service by publication, and over property, see § 56, ante.

An appearance for special purpose may be made, and confers no jurisdiction upon the court to render personal judgment against such party: Belknap v. Charlton, 25 Or. 41,

528. Jurisdiction Over Corporation.

34 Pac. 758; Meyer v. Brooks, 29 Or. 209, 44 Pac. 281.

The court acquires no jurisdiction to render a judgment in personam upon a nonresident who does not appear: Willamette Real Estate Co. v. Hendrix, 28 Or. 494, 42 Pac. 514, 52 Am. St. Rep. 800; Bank of Colfax v. Richardson, 34 Or. 524, 54 Pac. 359, 75 Am. St. Rep. 664.

No corporation is subject to the jurisdiction of a court of this state, unless it appear in the court, or have been created by or under the laws of this state, or have an agency established therein for the transaction of some portion of its business, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached. [L. 1862; D. Cd. § 507 ; H. C. § 516.]

JURISDICTION OVER CORPORATIONS: tion of local courts. In the absence of a See the note to § 55, ante.

Unless a corporation voluntarily appears, it must be transacting in this state some part of its corporate business when the action is commenced to sustain the jurisdic

special provision relating to service of process on foreign corporations, jurisdiction is obtained over them in like manner as over domestic corporations, and a return of service good as against the latter will under

like circumstances be good against the former: Farrell v. Oregon Gold Co. 31 Or. 466. 49 Pac. 876.

Service of summons within this state on an officer of a foreign corporation who happens to be casually here, does not confer on the courts of Oregon jurisdiction over such corporation; and making a contract in Oregon, to be performed elsewhere, and negotiating in this state a sale of the corporate property, is not transacting corporate business within the meaning of this stat

§ 529. Exercise of Jurisdiction.

ute: Aldrich v. Anchor Coal Co. 24 Or. 36, 32 Pac. 756, 41 Am. St. Rep. 831.

RETURN OF PROCESS.-It is not necessary to the validity of a default judgment rendered against a foreign corporation that the return of the service of summons shall show that the defendant was at the time engaged in business in this state. Though that is a jurisdictional fact, it need not appear in the sheriff's return, but may more appropriately appear elsewhere in the record: Farrell v. Öregon Gold Co. 31 Or. 469, 49 Pac. 876.

When the court has jurisdiction of the parties, it may exercise it in respect to any cause of action or suit whenever arising, except for the specific recovery of real property situated without this state, or for injury thereto. [L. 1862 ; D. Cd. § 508 ; H. C. § 517.]

€ 530. When Majority of Persons or Referees May Act.

Whenever there is more than one referee, all must meet, but a majority of them may do any act which might be done by all, and whenever any authority is conferred on three or more persons, it may be exercised by a majority of them, upon the meeting of all, unless expressly otherwise provided. [L. 1862; D. Cd. § 509 ; H. C. § 518.]

Where the viewers are appointed by a county court to view the route of a proposed road and assess damages for opening it, they must all meet for deliberation concerning the matter; thereafter two of them

$ 531. Computation of Time.

may execute the authority conferred; but where two of them attempt to execute the authority without such previous meeting, all their action will be a nullity: Beekman v. Jackson County, 18 Or. 285, 22 Pac. 1074.

The time within which an act is to be done, as provided in this code, shall be computed by excluding the first day and including the last, unless the last day fall upon a Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded. The time for the publication of legal notices shall be computed so as to exclude the first day of publication, and to include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication. 1862; D. Cd. § 510; H. C. § 519.]

COMPUTATION OF TIME.-In computing the time limited by § 4 for bringing action to recover real property, the day on which the cause of action accrued should be excluded, since the rule prescribed by this section applies to all computations of time: Grant v. Paddock, 30 Or. 316, 47 Pac. 712.

So, when the last day of doing an act falls on Sunday, it is to be excluded, and if the act is performed on the day following, it is done in time, under this section; Nick

[L.

lin v. Robertson, 28 Or. 285. 42 Pac. 993; Wachsmuth v. Routledge, 36 Or. 309, 51

Pac. 443.

Where the statute prescribes that an act shall be done within so many days from such a date, if the act is done upon the first day it is done within the time prescribed, for this section is merely a rule of computing time, and does not prescribe the days which on an act may be done: Poppleton v. Nelson, 10 Or. 438.