(185 P.) "December 28, 1915. "Oregon Engineering & Construction Co., Oregon City, Oregon-Gentlemen: You are advised that at the meeting of West Linn water commission, held last night, the waterworks system constructed by you for the city of West Linn was accepted. Said acceptance was conditioned upon the retaining of fifteen hundred (1,500) dollars, one-half of which was for cleaning up and finishing reservoir and standpipe; the other half for cleaning up ditches and other incidental work. "Yours truly, S. A. Cobb." of the supplemental contract defendant is entitled to a credit upon any sum due to plaintiff, for interest upon money advanced to plaintiff for the purchase of materials, at a time when no payments were due from defendant to plaintiff, and that such interest amounts to $160.14. The reply denies this demand, and it is therefore one of the issues to be determined. Defendant asked for a finding thereon, but, through some inadvertence, the trial court failed to make one. The plaintiff urges that, since the prayer of lief, there is no issue thereon. However, the the answer does not ask for affirmative retion of any judgment which the plaintiff may answer very clearly pleads the item in reducrecover, and is therefore pro tanto a defense. The evidence is all before us, and it appears therefrom that plaintiff received its compen"West Linn Water Commission, West Linn, sation in municipal bonds, and while no monOregon-Gentlemen: The contractors, the Ore-ey was advanced before it was due, plaintiff gon Engineering & Construction Company, of Oregon City, Oregon, have completed their contract for the construction of a water system for the city of West Linn, in so far as I am concerned. Yours truly, S. A. Cobb, Cobb testified that early in the spring of 1916 the incidental work referred to in the documents above quoted was all completed by plaintiff, and thereafter Cobb addressed a letter to the commission which reads thus: "April 12, 1916. "Engineer of the West Linn The minutes of the commission show that on February 8, 1916, a meeting was held and this record was made: "Minutes of the meeting of December 27, 1916, and January 8 and January 20, 1916, read and approved, except that part of the minutes of December 27, 1915, referring to the acceptance of the water system from the contractor, the Oregon Engineering & Construction Company, which is disapproved, and any action taken at said meeting on said acceptance is rescinded." The city began using the system for the distribution of water to residents about the middle of December, 1915, and has used it continuously ever since. This action was not begun until late in 1917, and no objection to the form of engineer's certificate appears to have been made until after this action was begun. There is a sharp conflict in the evidence upon the question as to whether or not the president of the plaintiff corporation requested a rescission of the commission's acceptance of the work. There is considerable testimony to the effect that the work of the contractor was well done, and in substantial compliance with the terms of the contract, and that, if the result is not perfectly satisfactory, it is because the design selected by the commission is not the most desirable, rather than through any default of the contractor. Under this condition of the record, we cannot disturb the findings of the trial court, and it follows that there was no error in denying the motion for a nonsuit. [5-8] Our attention is also directed to the fact that the answer pleads that by the terms did receive its equivalent in bonds in adest thereon. There is no dispute as to the vance, and defendant is entitled to the interamount of such interest, if any be found to be due. Under the authority of section 3 of article 7 of the state Constitution, as amended in 1910 (see Laws 1911, p. 7), the judgment of the trial court will be modified, by deducting therefrom $160.14, and in all other respects it is affirmed. MCBRIDE, C. J., and BURNETT and BENNETT, JJ., concur. (95 Or. 271) BESSLER v. POWDER RIVER GOLD (Supreme Court of Oregon. Dec. 2, 1919.) 1. ADVERSE POSSESSION 13-"CLAIM OF RIGHT"; "CLAIM OF TITLE"; "CLAIM OF OWNERSHIP.' 99 The terms "claim of right," "claim of title," and "claim of ownership," when used to express adverse intent, mean nothing more than the intention of the disscisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right. [Ed. Note.-For other definitions, see Words of Ownership; Claim of Right; Claim of Title.] and Phrases, First and Second Series, Claim 2. ADVERSE POSSESSION 63(7)-POSSESSION OF VENDEE UNDER CONTRACT. The possession of a vendee of land under contract to purchase, whether oral or written, after payment of the entire purchase price, is from the time that such payment was made, and presumptively adverse to that of his vendor such possession is not prevented from being adverse by his knowledge of a defect in the title or a subsequent demand for a deed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. ADVERSE POSSESSION 63(7)-POSSESSION | 000 worth of gold, a verdict for $15,000 held UNDER INVALID CONTRACT TO PURCHASE. Possession under an invalid contract to purchase land, if continued the requisite period after payment of the agreed price, will ripen into title, and such title will be equally as effective as if the same had been acquired under a valid contract. 4. ADVERSE POSSESSION 31-LEGAL OWNER TO TAKE NOTICE OF EXTENT OF CLAIM. An owner of premises is bound to take notice of the nature and extent of the possession by a claimant. 5. ADVERSE POSSESSION 85(3)—Continued POSSESSION AS CONSTITUTING PRIMA FACIE CASE. Continued, unexplained possession of land for a long period of time is evidence that the possession is adverse and makes out a prima facie case, and, until rebutted by some satisfactory evidence, is conclusive as to the nature of the possession. 6. ADVERSE POSSESSION 13-TITLE ACQUIRED BY POSSESSION FOR TEN YEARS. Title by adverse possession is acquired by the open, notorious, exclusive, and uninterrupted antagonistic possession under a claim of ownership of land belonging to another for the full period of ten years by a person whose claim of ownership would not be in violation of some contractual duty owing by him to the owner of the land, such as a tenant holding under a lease or the like. 7. APPEAL AND ERROR ~1099(6)—RULINGS ON PRIOR APPEAL LAW OF CASE. Where plaintiff's pleadings were held sufficient on a former appeal to entitle him to sustain his claimed title to land, the ruling upon such former appeal became the law of the case, and on a subsequent appeal it could not be said that a judgment for plaintiff was improper, where the evidence supported the allegations of plaintiff's pleadings. 8. ADVERSE POSSESSION OF PURCHASER FROM VENDEE ADVERSE TO VENDOR. not excessive as a matter of law, in view of the evidence and the fact that there was no exception to the instructions on the measure of damages. In Banc. Appeal from Circuit Court, Baker County; Gustav Anderson, Judge. Action by Thomas Bessler against the Powder River Gold Dredging Company. Judg. ment for plaintiff, and defendant appeals. Affirmed. See, also, 90 Or. 663, 178 Pac. 237. This action was commenced in the circuit court of Baker county, October 27, 1916. The plaintiff seeks to recover possession of the strip of land containing a fraction over three acres described in his complaint, and also damages in the sum of $3,000 for injury done to the premises by defendant and for alleged wrongful ousting of plaintiff and for depriv ing him of possession thereof. Plaintiff bases his claim of title to the premises on the ground of adverse possession continued by himself and his predecessors in interest for the full period of ten years. In a supplemental complaint plaintiff further alleges that since the commencement of the action defendant wrongfully entered upon the premises, dredged and mined therefrom all the gold deposits and entirely destroyed the property so that the same is unfit for any use whatever; and plaintiff by reason of these acts sustained further damage in the sum of $12,000, and he therefore demands judgment as in the original complaint and for the sum of $12,000 in addition thereto. In its answer to the complaint and the supplemental complaint, defendant denies that 63(5)-POSSESSION plaintiff is the owner of the premises, or that he or his grantors or predecessors in interest ever were owners of the premises in controversy, and denies all the allegations of wrongful entry and all the allegations upon which plaintiff bases his claim for damages, and ownership of the premises. After a purchaser from a vendee has paid his purchase money, his continued possession is deemed adverse to the vendee, and consequently to the original vendor, although the latter bas not been paid. 9. ADVERSE POSSESSION 63(5)—EFFECT OF RELEASING VENDEE BY PURCHASER FROM HIM. By way of a first separate defense defendant alleges in its answer that at the time of the commencement of the action and for a Where purchaser from vendee paid his pur-long time prior thereto one R. W. Derby was chase money and took possession and vendee found that he could not get a deed from the original vendor, and the purchaser released the vendee from his obligation to secure a conveyance on payment of a certain sum to him with the understanding that it would not affect the purchaser's title to the land, such release did not prevent the possession of the purchaser from being adverse as against the original vendor. 10. TRESPASS 58-DAMAGES NOT EXCESSIVE. In an action for possession of land and damages, defendant having torn down buildings and dredged the land for gold, obtaining about $20, the owner in fee and in possession of the premises in controversy. Secondly, that plaintiff is estopped and precluded from now claiming title to the property described in his complaint for the reason that the title to the same property was heretofore the subjectmatter of adjudication in an equity suit between the same parties and their privies. Plaintiff by his reply admits that, while the suit in equity was brought and the matters therein alleged as now claimed by defendant in this action, and that a decree was therein entered as pleaded by defendant, he avers in (185 P.) substance as follows: That the decree in the premises in controversy were listed. Smith equity suit in effect determined that the pos- and Mack, after making the inventory and session of plaintiff and his grantors could not looking over the property at Sumpter, rehave been and was not adverse prior to March turned to Baker. The parties then agreed 1906, and that therefore plaintiff now alleges upon the price to be paid for the business and that when the suit was brought ten years of the property, which Smith and Mack paid in adverse possession had not elapsed, so that the full at that time. Brown, Phillips, and Gidclaim of title on the ground of adverse pos- des believed that they owned the real premsession, as now claimed, had not matured, ises in controversy, and so represented to and therefore could not be litigated or deter- Smith and Mack, for the reason that they mined in that decree, and that after the com- had purchased the same from the Sumpter mencement of that suit and during the pen- Lumber Company and paid the purchase dency thereof and after the same was deter- price. Smith and Mack, relying on that repmined on appeal the plaintiff remained in ad-resentation, paid for it, and the deal was verse, open, hostile, notorious, and continu- closed. At this time one of the partners inous possession of the premises until long formed Smith that when he returned to after the full period of ten years from and after March, 1906, had expired, and that by such adverse possession he has now matured the claim and acquired title by such adverse possession. This case is appealed to this court for the second time, the first decision being found in 90 Or. 663, 176 Pac. 791, 178 Pac. 237. A suit to quiet title to the same parcel of land involved in this case has also been before the court. Bessler v. Derby, 80 Or. 518, 157 Pac. 791. As a result the legal questions involved are well settled. It is a case, however, of considerable importance, and merits a discussion of the legal questions involved. Sumpter to take charge of the property and the business purchased he should see Mr. W. B. Riley, who was at that time in charge, and that Riley would see to the preparation of a deed to the premises, which later would be executed by Brown, Phillips, and Geddes. On May 1, 1906, Smith went to Sumpter, and in behalf of himself and Mack took possession of the land which they had purchased, as well as the business. Shortly thereafter he went to see Mr. Riley, as he had been instructed. Riley informed him that he had not been able to find a deed to the premises among the papers, and suggested that they should see Blanchard, the representative of the Sumpter Lumber Company, who had sold the property, and find out about the deed. A few days later they saw Blanchard, and he inform The record tends to disclose the following facts: In 1905 the partnership consisting of P. J. Brown, Frank Geddes, Fred Phillips, and J. B. Stenoff purchased the tract of landed them that the deed to the premises had not in controversy to be used by them as the lo- been executed, but stated that the premises cation for their slaughterhouse and slaugh- had been purchased by Brown, Phillips, and ter pens. The consideration agreed upon was Geddes, that all of the purchase money had $250, payment of which was completed ac- been paid prior to that time, and that a deed cording to the testimony in this case and as would be made within a very short time, and admitted by appellant, in March, 1906. Im- stated that, inasmuch as Brown, Phillips, and mediately upon entering into the agreement Geddes had sold the property to Smith and they took possession of the premises, built a Mack, he would have the deed made to fence inclosing the same, and erected there- Smith and Mack. Several times thereafter on a slaughterhouse, icehouse, and other nec- Smith spoke to Blanchard about the deed, essary buildings to prepare the premises for and always received from him the assurance slaughterhouse purposes. At that time these that a deed would be executed in the near parties were engaged in the butcher business future, and he had no intimation from Blanat Sumpter, Or., and conducted their business chard or any one else that there was any under the name of the Sumpter Meat Com- question as to the validity of the contract of pany. In March, 1906, because of some finan- sale, or that the Sumpter Lumber Company cial differences, J. B. Stenoff sold his interest would refuse to execute a deed in accordance in the firm and disappeared. The partner- with the contract. It had received the money ship took possession of the premises in the and kept it with full knowledge of what it latter part of the year 1905. Their posses- was paid for. In 1909, Smith bought Mack's sion continued from that time until about interest in the property. At that time Smith May, 1906, when W. P. Smith and Thomas and Mack insisted that a deed should be furMack entered into negotiations with them nished them in accordance with their contract. for the purchase of the butcher business and Brown, Phillips, and Geddes paid to Smith the property owned by them at Sumpter, Or. and Mack the sum of $500, with the underThese negotiations culminated in Smith and standing that the payment of that sum of Mack going to Sumpter, looking over the prop- money would not in any manner affect the erty, and making an inventory of the same. title of Smith and Mack to the property. In this statement of property owned by Smith and Mack's possession continued from Brown, Phillips, and Geddes and which they May, 1906, until Smith bought out Mack in proposed to sell to Smith and Mack, the 1909, and Smith's possession continued there 1 the same for slaughterhouse purposes and erecting buildings and making other improvements thereon and cultivating a portion thereof during the latter part of that time; that all the essential elements of adverse possession were present. The terms "claim of right," "claim of title," and "claim of ownership," when used in the books to express adverse intent, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right. 1 R. C. L. p. 706, § 19; Crowder v. Doe, 162 Ala. 151, 50 South. 230, 136 Am. St. Rep. 17; Power v. Kitching, 88 after until he sold to the plaintiff in June( predecessors held possession of the land 1912, and the plaintiff's possession con- under a claim of right or ownership for more tinued until July 18, 1916. The posses- than the statutory period of ten years, using sion of Brown, Phillips, and Geddes and their successors in interest from March, 1906, was not disturbed in any manner until July 18, 1916. On that date, the defendant, Powder River Gold Dredging Company, commenced suit, and enjoined the plaintiff from in any manner interfering with the premises. After securing this injunction the defendant immediately tore down and burned up plaintiff's buildings and fences. Plaintiff then commenced this action. After which and while the case was pending, the defendant dredged the entire premises, rendering them of no possible use or value. The last dredging was done in January, 1917. The plaintiff then filed a supplemental complaint, al-Am. St. Rep. 701, note at page 703. leging the dredging out and destruction of [2] The possession of the partnership of the premises, and asking for $12,000 addi- Brown, Phillips and Geddes, the vendees, untional damages. During the trial Mr, der an executory contract for the purchase of Derby, the manager of the defendant corpo- | the land from the Sumpter Lumber Company, ration, stated upon the witness stand that the defendant company had extracted from the premises in controversy gold of the value of $20,184. The jury found that the plaintiff was the owner in fee of the premises, and returned a verdict for the full amount prayed for, namely, $15,000, and from this judgment the defendant has appealed. M. D. Clifford and Thomas H. Breeze, both of Baker (Clifford & Correl, of Baker, on the briefs), for appellant. the vendor, after the full payment of the consideration in March, 1906, was presumptively adverse to the vendor and its successor who had notice of the vendees' rights. Anderson v. McCormick, 18 Or. 301, 303, 22 Pac. 1062; Ambrose v. Huntington, 34 Or.·484, 489, 56 Pac. 513; West v. Edwards, 41 Or. 609, 614, 69 Pac. 992; Bessler v. Powder R. G. D. Co., 90 Or. 663, 176 Pac. 791, 178 Pac. 237; Watts v. Witt, 39 S. C. 356, 17 S. E. 822; Woods v. Montevallo, etc., Co., 84 Ala. 560, John L. Rand and A. A. Smith, both of bois v. Jackson, 8 Cow. (N. Y.) 589, 18 Am. 3 South. 475, 5 Am. St. Rep. 393; La FromBaker, for respondent. Dec. 463; note to Jasperson v. Scharnikow, 15 BEAN, J. (after stating the facts as above). in R. C. L. p. 751, section 74, thus: It is stated in 2 C. J. p. 154, § 273, as follows: ant submitted a motion for a judgment of "But the possession of the vendee of land, nonsuit, and at the close of all the testimony under contract to purchase, whether oral or requested the court to direct the jury to re-written, after payment of the entire purchase turn a verdict in favor of defendant. These money, is presumptively adverse to that of his vendor from the time that such payment requests were denied. The proposition thus was made. Nor is his possession prevented raised is the pivotal question in the case. from being adverse by his knowledge of a deSeveral exceptions were saved to the ruling fect in the title, or his subsequent demand for of the court relating to the introduction of a deed. * testimony, but in so far as they are deemed important they hinge upon the main issue. It is the contention of defendant that the possession of the land in controversy held by the plaintiff and his predecessors was not adverse, but that the entry was made under an executory contract to purchase the premises, and that each held in subordination to the title of defendant's predecessor, and recognized such title. Plaintiff contends that the possession of Brown, Phillips, and Geddes became adverse in March, 1906, by virtue of the payment of the purchase price in full, and their possession with their successors in interest so continued until July 18, 1916, thus being in adverse possession for more than ten years. [1] There was an abundance of evidence "While the law seems to be otherwise in some states, the decided weight of authority is to the effect that a vendee of land in possession under a contract of sale by parol or in writing holds adversely to his vendor from the moment of payment or performance of the conditions of the contract, although a deed is not executed, and if this possession is continued for the statutory period the purchaser acquires title by the statute of limitations. However the vendee may, by express, recognition of the vendor's title, defeat the adverse character of his possession." The rule is announced that under an executory contract for the purchase of land where (185 P.) vendee is not required to give further notice | rebutted by some satisfactory evidence, is to his vendor that he holds adversely; the conclusive as to the nature of the possession. payment of the purchase price in itself being Smith v. Badura, 70 Or. 58, 62, 139 Pac. 107; notice. Normant v. Eureka County, 98 Ala. Dunnigan v. Wood, 58 Or. 119, 124, 112 Pac. 181, 12 South. 454, 39 Am. St. Rep. 45; Watts 531. v. Witt, supra. The knowledge of the members of the partnership, the vendees, that their title was not perfect would not prevent their possession from being hostile, neither would their demand for a deed made in the former suit work such a hindrance. The suit was a solemn assertion in the court that they claimed the right to the land. In Anderson v. McCormack this court, speaking by Mr. Justice Strahan, adopted the rule which prevails in most of the states of the Union. The following language was there used, about which there can be no misunderstanding: "The rule seems to be that where a purchaser enters into possession of land under an executory contract which leaves the legal title in his vendor, and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title; and in such case, as also in the case of lessee and other similar cases, where one is under the owner of the legal title, a privity exists which preIcludes the idea of a hostile or tortious possession that could silently ripen into an adverse possession under the statute of limitations. Core v. Faupel, 24 W. Va. 238; Jackson v. Spear, 7 Wend. [N. Y.] 401; Williams v. Snidow, 4 Leigh. [Va.] 14; Gay v. Moffit, 2 Bibb [Ky.] 506 [5 Am. Dec. 633]; Keys v. Mason, 44 Tex. 140; Pratt v. Caufield, 67 Mo. 50. But where the vendee has executed his part of the agreement by the payment of the purchase money, his possession is from that time adverse to the vendor." There has been no deviation from such announcement in this state. The position of the defendant is in effect that, before possession taken by a vendee under a contract to purchase real property, al though the purchase price has been paid in full, can be claimed to be adverse, the contract must be such that upon performance by the vendee he can in equity compel a conveyance of the land. We are unable to agree with this claim. [6] Adverse possession is not based on title, but is in hostility to the true title. Title by adverse possession is not dependent on validity or invalidity of any contract of purchase or the presence or absence of a remedy in equity for specific performance. Title by adverse possession is acquired by the open, notorious, exclusive, and uninterrupted antagonistic possession under a claim of ownership of land belonging to another for the full period of ten years, by a person whose claim of ownership would not be in violation of some contractual duty owing by him to the owner of the land, such as a tenant holding under a lease or the like. It must be in hostility to the true title. Where there is title there is no reason to invoke the doctrine of adverse possession. The plaintiff in this case bases his right to the land upon the principle of law that, whereas he and his grantors or predecessors have had such adverse possession of the premises in controversy for the statutory period, the title to the premises has been lost to the defendant, and has become vested in the plaintiff. [7] It is unnecessary in this case for the court to pass upon the facts forming the basis of plaintiff's title. It is sufficient for us to find that the testimony in the case tends to support the allegations of plaintiff's complaint and reply. The pleadings in the case were before this court in the former appeal, and were held to be sufficient, if true, to sustain plaintiff's title to the land. The ruling upon the former appeal has become the law of this case. [3] Possession taken under an invalid contract, if continued the requisite period, will ripen into title, and such title will be equally as effective as if the same had been acquired under a valid contract. Newsome v. Snow, 91 Ala. 641, 8 South. 377, 24 Am. St. Rep. 934; Bryan v. Atwater, 5 Day (Conn.) 181, 5 Am. Dec. 136; Woods v. Montevallo, etc., Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393. [4, 5] The Sumpter Lumber Company knew or should have known of the possession and claim of plaintiff and his predecessors. An owner of premises is bound to take notice of the nature and extent of possession by claimant. The party holding the superior title is not in the condition of an ordinary and casual observer, but must diligently look to his own interests, know the boundaries of his own land, and ascertain the extent, meaning, and locality of any settlement made within them without his authority. 2 C. J. p. 268, § 5972, and note. Continued, unexplained possession of land for a long period of time is evidence that the possession is adverse, The testimony tended to show that Smith and makes out a prima facie case, and, until and Mack bought the land in the belief that [8] The claim of adverse possession might also be based upon the entry and possession of Smith and Mack on May 1, 1906, when they purchased the premises of Phillips, Brown, and Geddes and paid in full therefor. The rule in regard to this second entry and possession of Smith and Mack is stated in 2 C. J. p. 155, § 276, thus: "But after a purchaser from the vendee has paid his purchase money his continued possession is deemed adverse to the vendee and consequently to the original vendor, although the latter has not been paid. |