
    Submitted on briefs September 16;
    affirmed October 20, 1931
    ROSS v. COLLMAN
    (3 P. (2d) 1112)
    
      F. H. Mills, of Klamath Falls, for appellant.
    
      Butenic & Yaden, of Klamath Falls, for respondent.
   BOSSMAN, J.

It will be observed from the foregoing that the complaint specifically described the plaintiff’s tract of land. Upon the trial it appeared that the defendant was purchasing, under contract, a tract of land in section 30 immediately south of and adjoining the land described in the complaint. The uncontradicted evidence showed that the easterly extremity of the fence mentioned in the complaint was upon the section line which separates sections 19 and 30, but that as the fence progressed'westward it departed more and more from the section line until it was 30 feet south of it at the quarter section line. The strip of fence which we have just mentioned is the only part of it which the defendant undertook to destroy. It was built by a predecessor in interest of the parties when he owned the land both north and south of it. The plaintiff does not contend that she has any interest in the fence unless it is a boundary line fence. From the foregoing, it will be observed that the evidence conclusively shows that the fence was entirely upon property south of that described in the complaint and that it did not mark the south line of that property.

The above being the facts, it is manifest that the fence is not upon the property described in the complaint, that it stands upon property which the defendant is purchasing under contract from his vendor, and that, hence, the proof fails to support the complaint. It follows that the decree of the circuit court must be affirmed.

Bean, C. J., Brown, Band, Belt, Campbell and Kelly, JJ., concur.  