
    [Decided November 22, 1897; rehe'aring denied.]
    LOVEJOY v. WILLAMETTE ELECTRIC CO.
    (51 Pac. 197.)
    Evidence of Fraud. — An allegation that defendants were guilty of fraud in an action to recover land in introducing in evidence a deed of plaintiff’s ancestor to defendants’ predecessors, when such deed had, in another action, been adjudged void, is not sustained where the only effect of the judgement in such other action was to determine that the land there in controversy was not in fact a part of that conveyed by such deed.
    
      From Multnomah: Loyal B. Stearns, Judge.
    This is a suit by Amos Lovejoy and others against the Willamette Falls Electric Company and other allied corporations to set aside a judgment in favor of the defendant corporations rendered in an action at law brought against them by the present plaintiffs to recover the possession of the island in the Willamette River at or near the falls at Oregon City, which was confirmed to the legal assignees of the Willamette Milling and Trading Company as “Abernethy Island,” by the eleventh section of the act of congress relating to public lands in Oregon, approved September 27, 1850 (9 Stat. 496), on the ground that such judgment was recovered through a mistake of plaintiffs as to the locus in quo, and by fraud on the part of the defendants in introducing 'in evidence a certain deed executed by the plaintiffs’ ancestor in 1863. The complaint, in substance, is: That at the time of the passage of the act of congress of 1850 known as the “Donation Law ” there were, and are now, two islands in the Willamette River at or near the falls, one immediately above the other, and separated by a well defined channel, the upper one containing sixteen and one-half and the lower one about one and one-half acres; that the lower one was known and designated at the time as “Governor’s Island,” or the “Island Mill Property,” and is the island confirmed to the assignees of the Willamette Milling and Trading Company by the act of congress referred to; that prior to the passage of such act George Abernethy undertook, by settlement or otherwise, to acquire title to the upper island, and for that reason it was commonly known and designated at the time as- “Abernethy Island”; that thereafter A. L. Lovejoy, the plaintiffs’ ancestor, became by mesne conveyances the owner in fee simple of the island confirmed to the milling company as Abernethy Island, and also the owner of all the right, title, and interest of Abernethy to the upper island, which was likewise known and designated as “Abernethy Island; ” that on February 28, 1863, Lovejoy and wife conveyed by deed to John H. Moore and others, according to the description in the deed, “what is known as ‘Abernethy Island,’ at the falls of the Willamette River, in Clackamas County, State of Oregon,” intending, however, to convey thereby their interest in and to the upper island, and not to the island confirmed to the milling company by the act of congress; that the lower island never was conveyed by Lovejoy to any person, and was owned by him at the time of his death, in September, 1882, and is now owned and in possession of the plaintiffs; that on November 3, 1890, the plaintiffs were informed and believed that one of the defendant companies had taken possession of the lower island, and was proceeding to erect buildings thereon, and, acting under this information and belief, and without visiting the locus in quo, or considering the confusion likely to arise out of the similarity of names of the two islands, they began an action of ejectment to recover the possession of “an island in the Willamette River, situated at or near the falls of said river on the east side of said river, at or near Oregon City, in Clackamas County, State of Oregon, being the same island described and confirmed as ‘Abernetliy Island’ in the eleventh section of an act of congress of the United States relating to public lands in Oregon, approved February 27, 1850, with its appurtenances;” that in truth and in fact the defendant in such action was not then in possession or exercising any acts of ownership or possession over the land described in the complaint, but was in possession of the upper island, commonly known as “Abernethy Island;” that, taking advantage of the confusion in names, its lessor filed an answer denying the allegations of the complaint, and alleging title in itself, and pleading the statute of limitations; that the cause went to. trial, and the plaintiffs, to maintain the issues on their part, introduced in evidence deeds from W. H. Farrar and wife and James Guthrie, Jr., of date July 9, 1862, conveying to their ancestor, A. L. Love-joy, “the ‘Island Mill Property,’ so called, or ‘Abernethy Island,’ ” and also testimony tending to show possession thereof by the plaintiffs and their ancestors since the date of such deeds; that the defendant thereupon, to maintain the issues on its part, offered in evidence the deed from Lovejoy and wife, of date February 28, 1863, conveying to J. H. Moore and associates what is known as “Abernethy Island ” at the falls of the 'Willamet-i River, in Clackamas County, Oregon, and other deeds through which the defendant claims title, and evidence tending to show continuous possession; that, although the conveyances referred to apparently describe the same premises, the two islands were in truth and in fact separate and distinct tracts of land, and the title thereto deraigned through separate channels; that, owing to the confusion growing out of this similarity of names, the plaintiffs’ attorney became confused, and proceeded to the trial on the theory that the island described in the complaint was identical with that deseribed in the deed from Love-joy and wife to Moore and associates, of date February 28, 1863; and, when his objection to the introduction of said deed was overruled, he abandoned the case, and judgment was thereupon rendered against the plaintiffs in favor of the defendant; that plaintiffs used all reasonable diligence to avoid the effect of such judgment, and to that end filed a motion for a new trial, which, being overruled, they filed an application to be relieved from the judgment on the ground of the mistake as to the locus in quo, which was also denied, and the ruling thereon subsequently affirmed by this court; that in prosecuting the motion to be relieved from the judgment, plaintiffs’ sole object was to place the cause in the same position in which it was prior to the trial thereof, for the reason that the Abernethy Island of which the defendants were claiming the possession and the adverse occupancy under the statute of limitations was not the Abernethy Island owned by the plaintiffs, the recovery of which was sought in the action.
    The complaint further alleges that in 1870 the defendants’ predecessor in interest was in possession of the upper island, claiming title thereto under the deed from Lovejoy and wife to Moore and others, and while so in possession W. C. Johnson and J. L. Barlow brought an action of ejectment against it to recover possession of such island, and were successful; that it was adjudged therein that the defendant had no title or interest in the island, and that the deed from Love-joy and wife to Moore and others was held for naught; that the defendants in this suit, and in the action at law as well, knew of this litigation, and the result thereof, but, with intent to cheat and defraud plaintiffs, fraudulently, wrongfully, and deceitfully introduced said deed in evidence, and did thereby mislead, confuse, and deceive the plaintiffs and their counsel on account of the similarity of the names of said islands, and that they were so taken by surprise as to be unable to proceed intelligently with their defense. To this complaint the defendants filed an answer, in which it is denied that there were at the time of the passage of the act of congress of September 27, 1850, or are now, two islands at the falls of the Willamette at Oregon City, east of the channel thereof, and alleges that, although the plats and surveys of the United States now show two islands east of such channel, there is, in truth and in fact, but the one known and designated in the act of congress as “Abernethy Island.” After denying the material allegations of the complaint, the answer, for a further and separate defense, alleges that the defendant, the Portland General Electric Company, is the owner in fee simple of the Abernethy Island mentioned and referred to in»the donation law, and that it and its predecessors in interest have been in the open, notorious, exclusive, and peaceable posession thereof for more than thirty years, and that neither the plaintiffs nor their ancestors, predecessors, or grantors have been in possession during that time. The proceedings in the action at law subsequent to the judgment therein are then set out in detail, and pleaded as a bar to this suit. A demurrer to the separate defense being overruled, a reply was filed, and upon the issues thus joined the cause was referred to Hon. W. D. Fenton, to report the facts and the law. The referee having reported in favor of the defendants, and his report having been confirmed, and a decree entered in accordance therewith, the plaintiffs appeal.
    Affirmed.
    For appellants there was a brief over the names of Dell Stuart, and Starr, Thomas & Chamberlain, with an oral argument by Messrs. Stuart and Qeo. E. Chamberlain.
    
    For respondent there was a brief and an oral argument by Mr. Julius C. Moreland.
    
   Mr. Justice Bean,

after making the foregoing statement, delivered the opinion of the court.

Assuming, for the purposes of this case, that a court of equity would, upon the facts alleged in the complaint, if shown to be true, set aside and vacate the judgment rendered in the action at law referred to in the pleadings, and that the proceedings in such action subsequent to the judgment are not a bar to this suit, we pass directly to a consideration of the facts. From the issues as made by the pleadings it appears that the two important questions of fact in the case are: First, whether the deed from A. L. Lovejoy and wife to J. H. Moore and others, of date February 28, 1863, purporting to convey “ what is known as ‘Abernethy Island,’ at the falls of the Willamette Itiver, in Clackamas County, State of Oregon,” was intended to and did convey the island confirmed to the legal assignees of . the Willamette Milling and Trading Company by the eleventh section of the act of congress approved February 27, 1850. If it did, this case is at an end, because it is conceded that the defendants have succeeded by mesne conveyances to whatever interest Moore and his associates obtained by virtue of the deed referred to, and, this being so, the exact location of the island is a matter of no consequence, so far as any rights of the plaintiffs are concerned. And, second, if the deed did not convey such island, the remaining question is whether the plaintiffs’ right of suit is barred by the statute of limitations, and this depends upon the question as to whether the present electric light station is located upon the island referred to and designated in the act of congress of 1850 as “Abernethy Island.” Of these questions in their order.

It appears from the evidence that prior to 1841 Dr. John McLaughlin settled upon a tract of land at Oregon City, which was subsequently known and designated in the donation law and on the public surveys of the United States as the “Oregon City Land Claim.” As a part of this claim, he contended that a small island, containing two or three acres, in the river immediately in front thereof, belonged to him. But in 1841 or 1842 some persons referred to in the testimony as missionaries took possession of the island under the name of the Willamette Milling and Trading Company, or the Oregon Milling Company, and constructed a saw and grist mill and other improvements thereon, and continued by themselves and assignees to occupy the same, notwithstanding Dr. McLaughlin’s protest, until the passage of the act of congress of 1850. Soon after they took possession of the island, their right and title thereto became vested in George Abernethy, provisional governor from 1845 to 1849, and the island thereafter became known and designated as “ Governor’s ” or “Abernethy’s ” Island, or the “ Island Mill Property.” On April 25, 1849, Abernethy sold the property to'Joseph Lane, describing it in the conveyance as that certain portion of land “ known as and commonly called ‘ Governor’s Island,’ being an island in the Willamette River, at the great falls, and the same on which certain persons known as. the Oregon Milling Company some time about the year 1842 constructed a saw and grist mill and other buildings and improvements, and being the same which the party of the first part purchased from said milling company.” On May 1, 1851, Lane conveyed the same to R. R. Thompson by a deed describing it as “ a certain portion of land situate and being in the great falls of the Willamette River, in the County of Clackamas, and Territory of Oregon, known as and commonly called ‘Governor’s Island’ or ‘Abernethy’s Island.’” On May 17, 1857, Thompson conveyed to James Guthrie by substantially the same description as in the Lane deed, with the addition that the premises conveyed were “the same island which was confirmed to the Willamette Milling and Trading Company, and their assigns, by the act of congress approved September 27, 1850.” On June 9, 1862, James Guthrie, Jr., and W. H. Farrar and wife, who seem to have acquired some interest in the property, conveyed it by separate deeds to A. L. Lovejoy, in each of which the property is described as “ the ‘ Island Mill Property,’ so called, or ‘Abernethy Island,’ situate at or near the falls of the Willamette River, in Clackamas County, Oregon.” We have thus been particular to trace the title from the milling company to Lovejoy, as it shows that the property conveyed to him, and to which he obtained title, was the island upon which the milling company entered in 1842, and constructed their mills, and made their improvements, and that it was known and designated in the deeds under which he held as “Abernethy Island.” When, therefore, he conveyed to Moore and hrs associates in 1863, and in his deed described the property as “ what is known as ‘Abernethy Island,’ at the falls of the Willamette River, in Clackamas County, State of Oregon,” the natural conclusion is that he intended to convey the old island mill property. That was the only island to which he had any claim, as shown by the evidence, and was then, and had been for a long time prior to that date, well known and commonly designated and generally recognized as “Abernety Island.” It was not only so known and described in the deeds under which he claimed title, but thirteen years before had been officially so designated by the act of congress. In view of these facts, it seems incredible that Lovejoy, who lived at Oregon City, and who was admittedly familiar with this island, its history and surroundings from the time of its occupation by the milling company .down to the time of his conveyance to Moore, could have been so mistaken or confused about the name as to have undertaken to convey some interest in another tract of land by designating it as “Abernethy Island.”

And, more than this, at the time of his deed it was not supposed by the people residing in or about Oregon City that there was any island in the river at or near the falls, east of the channel, except the one upon which the island mills had been situated, and which was known as “Abernethy Island.” There was a ledge of rocks, exposed at certain stages of the water, above this island, and extending up towards Canemah, which was subsequently surveyed by authority of the government of the United States, and, after some litigation, determined to be a separate island, and has since been known and designated as “Thompson’s Island;” but at the time of Lovejoy’s deed it was not known or designated by any particular name, and was generally supposed to be either a part of the main land or a mere extension of Abernethy Island. It is true, the widow of Lovejoy, who was called as a witness in this case, says that there was, and had been all the time prior to the passage of the donation act, and prior to the deed from her husband to Moore, a well-known island in the river above the one upon which the island mills were situated, and that Abernethy claimed some right or title thereto, and for that reason it was known as “Abernethy Island,” while the lower island was commonly known as “ Governor’s Island.” But in this she is wholly unsupported by any other testimony, and is evidently mistaken. The maps and plats of the public surveys, as well as the testimony of numerous persons who resided at Oregon City during the time, and whose business interests were such as to render them familiar with the location of the various islands in and about the falls, clearly show that the only body of land in the river east of the channel, recognized at that time as an island, was the one upon which the island mills were located; and the witnesses all testify that they never heard any other island called Abernethy Island. Looking at these facts, which are practically undisputed, it seems to us that no other fair conclusion can be reached but that Love-joy intended to, and did by his deed of February 28, 1863, convey to Moore and associates, and that they intended to purchase, all his right, title, and interest in and to the island confirmed to the grantees of the Willamette Milling and Trading Company by the act of congress of September 27, 1850, and known as “Abernethy Island.” It is a significant fact, supporting this conclusion, that, although Lovejoy lived in the vicinity for twenty years after the execution of the deed to Moore, no claim was ever made by him, so far as this record discloses, that there was any error in the description in said deed, or that it was not intended to or did not convey the island referred to in the act of congress. Nor was any such claim made by his widow or heirs until after they were defeated in the action at law referred to in the pleadings. Indeed, that action was tried upon the theory that the island referred to in the act of congress was the one described in the deed from Lovejoy to Moore and associates, and Mrs. Lovejoy herself so testified at the time, although she now thinks otherwise. In that action, which was instituted at her instigation, and conducted under her management, plaintiffs relied solely upon the contention that the deed had never been delivered to take effect as a conveyance; and as soon as it became apparent that they were unable to support that contention by competent testimony the case was admitted to be with the defendant, and a judgment rendered in its favor accordingly. It was not until some time after the rendition of such judgment, and after a motion for a new trial had -been denied, that the claim was put forth that there was a mistake in the locus in quo, or that the deed in question was not intended to convey the island referred to in the act of congress. It is not at all probable that, if Lovejoy had intended to convey some interest in another tract of land, he would have remained silent for twenty years without asserting any claim to as valuable a piece of property as the lower island is shown by the testimony to have been, or that his widow and heirs would have done likewise, until after their defeat in the action at law referred to. It is contended, or at least it is alleged in the complaint, that this deed was never delivered to take effect. But that question was determined in the action at law, and is not open to consideration here. But, if it was, there is no competent testimony whatever in the record to support it.

It is also claimed that the defendant in the law action was guilty of fraud and deceit in introducing in evidence the deed from Lovejoy to Moore and associates, for the reason that in an action brought against its predecessor in interest by Johnson and Barlow in 1870 to recover the possession of the upper island, or what is known in the record as “ Thompson’s Island,” the defendant pleaded title thereto in itself, and relied for proof thereof upon the Lovejoy deed, and that the judgment in such action, being against it, is, in effect, a declaration that such deed is void. But the history of that litigation shows that some time in 1865 one Allen Thompson filed upon, as a pre-emption, what was afterwards surveyed and designated on the maps and plats of the United States as an island in the river immediately above Abernethy Island, and obtained title from the government thereto. This title he conveyed to Johnson and Barlow, who brought an action of ejectment against the People’s Transportation Company to recover the possession thereof. In that action the defendant pleaded title to the locus in quo, and claimed that the property upon which Thompson had settled was not a separate island, but was in truth and in fact a part of the Abernethy Island referred to in the act of congress; and, so claiming, in order to show their title, offered and introduced the deed in question. The judgment in the action was in favor of the plaintiffs, but its only effect was to determine that the land sued for was not in fact a part of Abernethy Island, and it in no way affects the validity of the deed under which the defendants claim to own the latter island, and hence there was no fraud in introducing it in evidence in the action at law.

If we are right in our conclusion that the deed from Lovejoy and wife to Moore and associates conveyed the island confirmed to the Willamette Milling and Trading Company by the act of congress, the exact location of such island becomes unimportant in this case, as we have already suggested. Upon that question, however, a vast amount of testimony has .been taken, and it seems to have been the principal question of fact discussed before and determined by the referee, and the discussion thereof occupies considerable space in the briefs of counsel. It is perhaps as well, therefore, that we should indicate our views upon the question, without, however, attempting to review in detail all the evidence bearing thereon. The contention for the plaintiffs is that the islands referred to in the act of congress, and which is designated on the official plats of the United States as “lot 8, in section 31, township 2, range 2 east,” lies north of and across the chasm from the present light station; while the defendants’ contention is that said station is located on such island. There are two practically undisputed facts in this case, which to our. minds, seem conclusive of the question. The first is that prior to the act of congress of 1850, Dr. McLaughlin laid out, surveyed, and platted a portion of the Oregon City claim for a town site, and sold and conveyed lots and blocks with reference thereto. Upon the plat so made by him are represented, with reference to the streets and blocks of the town, and particularly blocks 1 and 75, the location of the island then occupied by the assignees of the milling company, the chasm dividing "the same from the main land, and a space on the main land north of and across such chasm, designated on •the map as a mill reserve. By section 11 of the act of 1850, which took away from Dr. McLaughlin, and set apart for university purposes, the Oregon City claim, it was made the duty of the surveyor-general to certify to the commissioner of the general land office all lots or parts of lots sold by him prior to March 4, 1849, and the purchasers or their assigns, in order that patents therefor might issue. In the discharge of this duty, John B. Preston, the then surveyor-general, on November 1, 1851, prepared or caused to be prepared a map or plat showing the survey of lots and parts of lots sold prior to the time specified, and certified to the same for the use and information of the commissioner of the general land office. This map, so far as necessary to any question here, is substantially the same as the prior maps filed by Dr. McLaughlin, and shows substantially the same relative location of the island in question with reference to the streets and blocks of the town. There is no dispute as to the location of blocks 1 and 75, and the testimoney shows that the actual measurements made on the ground from these blocks of the distances and the directions indicated on the plats’ locate the island in question at the place contended for by the defendants, and that the point claimed by the plaintiffs as the true location is within the mill reserve. The other prominent factor in the case is that it is shown by the maps, and is agreed by all parties, that Abernethy Island was separated from the main land by a well defined chasm or gorge through the solid basaltic rock, which appears, from the testimony of John McCracken, who was part owner of and superintendent of the island mills during the winter of 1852, and from the official survey and plats of the island as made by and under authority of the government of the United States in the same year, to be about one hundred feet wide. Mr. McCraken bases his judgment upon the fact that in the winter of 1852 the water carried off the bridge across this chasm which was Used for the purpose of reaching the mill property from the main land, and that he had to get out stringers and beams for a new bridge; that while the water was still high he inquired of people whom he thought would know about the probable width of the chasm, and found the prevailing opinion to be that it was about one hundred feet wide; that, acting on this theory, he cut his timbers for the bridge one hundred and ten feet long, and when he placed them in position on the rocks which formed a natural abutment on either side he thinks he had about five feet to spare on either end. The notes of the official survey of the island made in 1852 show that the beginning point for such survey was a point across this chasm one hundred and five feet from the meander line on the opposite side, so that it is clear that the chasm separating Abernethy Island from the main land was a well defined channel of the river. It is admitted that there is a channel answering this description immediately north of the island upon which the present light station is situated, and the evidence fails to satisfactorily disclose that there is, or ever was, any other such chasm north of that point and between it and block 1 of Oregon City. Taking the information, therefore, to be derived from the McLaughlin and Preston maps, and the fact of this chasm, which is a fixed and certain landmark, it is impossible to reach any other conclusion than that the island on which the old mill was located, and referred to in the act of congress, is the same one upon which the present light station of the defendant is now located. But, in addition to this, J. W. Meldrum, D. P. Thompson, Capt. Apperson, James Charman, W. C. Johnson, John McOraken, Peter Paquette, and various other persons who lived at and in the vicinity of Oregon City during the time the island was occupied by the Oregon Milling Company, and prior to and since the flood of 1861, —these witnesses, some of whom had exceptional opportunities to observe and know the exact location of this island, and who have been familiar with it from that time until the present, all testify that the light station is upon the same island that was formerly occupied by the milling company, and they say there can be no mistake about this conclusion. In addition to all this, the survey of the engineers who relocated on the ground.the government surveys, shows that the island upon which the light station is located accurately and aptly answers the calls in the field notes, and is the only island which does so. So that, however we may view this case, the facts are with the defendants, and the decree must be affirmed.

Affirmed.  