Sperry v. Wesco

Opinion by Mr. Justice Moore. The plaintiff, having by mesne conveyances from the United States established his title to lots one, two, and three of block eight in the town of Brooklyn, to identify the land in controversy offered in evidence over the defendant’s objection a certified copy and also the original plat of the “Village of Brookland.” It appeared from this plat that the initial point of the survey of the town-site commenced at the northwest corner of block one, three hundred and five links west and thirty feet south of the corner to sections two, three, ten, and eleven in township one south of range one east of the Willamette Me — 487 — ridian, while the premises in controversy were surveyed from an initial point three hundred and five feet west and thirty feet south of said corner, thus making a difference of one hundred and three and seven tenths feet in the initial points. There was no evidence offered to prove that any of the monuments of the original survey of the town-site existed upon the ground, and the plaintiff, to fix the initial point of said survey at three hundred and five feet instead of three hundred and five links west of said corner, was permitted to offer in evidence over the defendant’s objection two deeds executed by J. W. Kern and wife, defendant’s grantors, to land adjoining said townsite on the south. The first deed, dated January thirtieth, eighteen hundred and seventy-two, conveyed to H. J. Stevenson the following premises: “Commencing at low-water mark on the Willamette River, west of the southwest corner of block nineteen in said town of Brooklyn, running thence east to a stake thirty feet east of block eighteen; thence south to the south line of a certain piece of land sold by Gideon Tibbetts to Lewis Love, and recorded at page five hundred and one in book ‘A,’ records of said deeds; thence west along said line to the Willamette River; thence northerly along the meanderings of said river to the place of beginning. ” The second, dated May thirty-first, eighteen hundred and seventy-seven, conveyed to Anna M. Woodward all the grantors’ interest in the following tract: “Beginning at a point in the south side line of a tract of land containing fifty-six acres, an undivided half of which was conveyed by said Tibbetts and wife to Lewis Love by deed dated October, eighteen hundred and fifty-seven, and recorded at page five hundred and one of book ‘A’ of deeds of said Multnomah County records. Said point is twelve hundred and twenty-two and one third feet south and four hundred and forty-five feet east of the northwest corner of said section eleven; thence north one hundred and sixty488 four and one third feet to a point; thence west four hundred and seventy feet to low-water mark on the Willamette River; thence south sixteen degrees east, tracing low-water line on said river one hundred and seventy-one feet to the southwest corner of said fifty-six-acre tract; thence east, tracing the south side line of said fifty-six-acre tract, four hundred and twenty-three feet to the place of beginning; the foregoing described property being the same land described in a deed made by the parties of the first part hereto to H. J. Stevenson, and dated the thirtieth day of January, eighteen hundred and seventy-two, and recorded in book ‘S’ of deeds of said Multnomah County records at page thirty-eight.” The deed from Tibbetts and wife to Sarah M. Kern describes a part of the east boundary of the tract conveyed to her as a line lying thirty feet west of blocks four, seven, fourteen, and seventeen in the town of Brooklyn, by the acceptance of which, and filing it for record, the grantee therein has admitted the existence of said townsite. The deed from Sarah M. Kern and husband to Stevenson located the north line of the tract conveyed to him upon the south line of blocks eighteen and nineteen in said town, thus recognizing the existence of said townsite, and in their deed to Anna M. Woodward they made the south line of blocks eighteen and nineteen a boundary of the land conveyed, and also represented the southeast corner of said block eighteen to be at a given distance from said section corner. These admissions and dedications were made while Sarah M. Kern was holding the alleged title to the tract conveyed to the defendant, but they related to property lying outside of that portion of the townsite conveyed to her by Tibbetts and wife, and the question is presented whether they are admissible in evidence to locate the premises in controversy and thus defeat the defendant’s title. 1. Section 685, Hill’s Code, provides that: “Where, — 489 — however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. ” The defendant’s counsel have cited the case of Tompkins v. Crane, 50 Cal. 478, in which it was held, under a statute almost identical with the foregoing, that a deed describing certain premises, but excepting a smaller tract thereof from the operation of the grant, which the deed recited had been sold to Jones, Tompkins & Strode by the grantor, was inadmissible in evidence to prove a title in said persons to the smaller tract, because the declaration of the grantor did not relate to the property described in the excepted tract; and from this authority it is contended that the admission or declaration of Sarah M. Kern and her husband related to the exterior lands of the tract conveyed to them by Tibbetts and wife, and not to any of the property situated within such boundaries, and hence not binding upon the defendant. In the case cited the deed did not purport to convey any of the property then in controversy, and the declaration was not made while the grantor was holding, but after he had conveyed, the title. The court there said: “If it be said that the declaration had relation to the tract sold to Jones, Tompkins & Strode, and proved that sale and a prior conveyance, then the declaration was not made while the declarent held the title.” The existence and location of the townsite of Brooklyn were the facts sought to be established by the admission and declarations of defendant’s grantors made by them when they held the title to the tract conveyed to him. Any declaration made by them in relation to the property within the townsite of which the locus in quo formed a part was admissible in evidence as tending to limit and qualify the estate, title, extent, and location of the premises owned by them therein. If the grantors, — 490 — after having made several conveyances of property in that portion of the town of Brooklyn owned by them, had conveyed all their remaining interest therein, without particularly describing it, no one will seriously contend that the deeds formerly made would be inadmissible in evidence to limit the extent of the premises granted in the latter deed. So in the case at bar, while the defendant’s grantors held the title to the premises within the boundaries of the tract conveyed to them by Tibbetts and wife, they admitted the existence of the town of Brooklyn, and the location of the blocks therein which bounded their premises on the east and south; and these admissions necessarily related to the property in controversy, and tended to limit the location thereof, and their estate therein, and were admissible in evidence, and it was for the jury to say as a question of fact whether this evidence established the existence and location of any portion of the townsite of Brooklyn. It was not necessary to prove that defendant’s grantors had any interest in or held the title to the premises conveyed to Stevenson or Anna M. Woodward, because it was not sought to make their declarations applicable to that tract of land. If the defendant’s grantors, while holding or claiming to hold the title to the premises in controversy, had said that the tract conveyed to them by Tibbetts and wife was bounded on the east by blocks four, seven, fourteen, and seventeen in the town of Brooklyn; that the southeast corner of block eighteen in said town was located at a given distance from the northwest corner of said section eleven; and that the south line of blocks eighteen and nineteen was situated a given distance south of the section line, will any one contend that such declarations would not be admissible as tending to establish the location of some of the blocks in said town? And if such declarations, orally made by such grantors, would be admissible in evidence can they be less reliable when — 491 — contained in their deeds? “That such declarations of the grantor,” says Field, J., in Stanley v. Green, 12 Cal. 163, “are admissible not only as against himself, but against parties claiming under him, is a familiar principle. The subsequent claimants are considered as standing in his place, and as having taken the title cum onere, subject to the same charges and restrictions which attached to it in his hands. It matters not whether the declarations relate to the limits of the party’s own premises, or to the extent of his neighbor’s, or to the boundary line between them, or to the nature of the title he asserts. If their purport is to restrict his own premises, or lessen his own title, they are admissible.” 2. In Hicklin v. McClear, 18 Or. 126, 22 Pac. 1057, it was held, in an action involving the title to certain lots in this same town of Brooklyn, that the facts relating to the platting of the townsite by the proprietors, their dedication of the streets and alleys by conveying lots therein, the existence of the two plats, and their similitude in fact, were admissible in evidence to identify the property then in controversy. The plaintiff, relying upon the foregoing authority, offered such proof, and Mrs. Tibbetts, widow of Gideon Tibbetts, testified that Israel Mitchel surveyed the said townsite, but by mistake he called the plat of said survey “Brookland,” and that the proprietors, being dissatisfied with that name, procured another plat from Mitchel in which he designated the town as Brooklyn; that said plats were each drawn upon thin yellow paper, were identical in every particular except as to the title, and that in conveying property therein all deeds executed by the proprietors described the lots and blocks as being situated in the town of Brooklyn, according to the plat thereof; that she had searched for the plat of Brooklyn in several places where she thought it probably might be, but was unable to find it, and believed it to — 492 — be lost. Upon- this testimony the plat of Brookland was admitted in evidence over the defendant’s objection, who contends that as her testimony was taken by deposition, and neither plat having been present when so taken, she had not identified the plat offered in evidence, and that it was inadmissible as secondary evidence because sufficient proof of the loss of the plat of Brooklyn had not been made. Secondary evidence of the contents of the plat of Brooklyn could be received only when the original could not be produced by the plaintiff in a reasonable time with proper diligence, and its absence was not owing to his neglect or default: Hill’s Code, § 691. “No precise rule,’- says Bean, J., in Wiseman v. Northern Pacific Railroad Company, 20 Or. 425, 23 Am. St. Rep. 135, 26 Pac. 272, “has been or can be laid down as to what shall be considered a reasonable effort, but the party alleging the loss or destruction of the document is expected to show ‘ that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.’” Tested by this rule, we think the plaintiff made the degree of proof required to entitle the plat of Brookland to be introduced in evidence as a copy of the plat of Brooklyn. 3. Mrs. Tibbetts had testified that the plats of Brooklyn and Brookland had each been drawn upon thin yellow paper, and as the original plat of Brookland, drawn upon paper of that kind, was before the court, it was proper to admit it in evidence for the jury to find as a question of fact whether Mrs. Tibbetts in her deposition had identified it. 4. We come now to the question of the admissibility of oral evidence to contradict the descriptive words of the plat of Brookland, by showing that the initial point of the survey was three hundred and five feet instead of that — 493 — number of links west of the section line. It is a well settled rule that oral evidence is not. admissible to contradict or vary the terms of a written instrument, and this rule is as applicable to questions relating to boundaries as to others (Tyler’s Law of Boundaries, 284); but where there is an ambiguity in the descriptive words of a grant, evidence of the intention of the parties at the time the instrument was executed is admissible in explaining it: Kanne v. Otty, 25 Or. 581, 36 Pac. 537. If the monuments of the original survey of the townsite could have been discovered, they would have controlled the descriptive words of the plat, but there was no evidence of their existence, in the absence of which the descriptive words of the plat must necessarily control the location of the premises. The plat of Brookland offered in evidence showed the corner to sections two, three, ten, and eleven located thereon, and also the section line between sections ten and eleven, near the boundary between lots three and four in block two; and it further appeared therefrom that, by the scale upon which the plat was drawn, the said section line was nearly three hundred and ten feet east of the northwest corner of said block one. It thus appearing that the descriptive words of the plat and the scale upon which it was drawn did not agree in the location of the initial point of the survey it was for the jury to say which was correct. The defendant’s grantors, by their description in the deed, in effect declared the southeast corner of block eighteen to be located at a point one thousand and „ fifty-eight feet south and four hundred and fifteen feet east of the northwest corner of said section eleven, and, conceding the plat of Brookland to be identical with that of Brooklyn, thereby admitted the northwest corner of said block one to be three hundred and five feet west and thirty feet south of said section corner. We think this evidence was admissible as tending to locate the premises in controversy. — 494 — 5. The evidence upon the question of adverse possession was conflicting, and it was for the jury to determine whether the defendant had established a title to any portion of the premises in controversy in this manner, and their verdict under proper instructions from the court having been for the plaintiff, this court cannot disturb the judgment rendered thereon because it might, from the evidence submitted to the jury, have reached a different conclusion. There being no error in the record it follows that the judgment must be affirmed. Affirmed,