Jones v. Teller

Mr. Justice McNary

delivered the opinion of the court.

Accurately to comprehend the legal principle involved, we deem it necessary to state that Brazee Street is a thoroughfare running east and west through Brazee Street addition, in Portland, Oregon, having its eastern termination at East Twenty-Seventh Street. That part of subdivision of lot 5 of Bowering tract here concerned lies immediately west of East Twenty-Eighth Street and a little distant from the terminus of Brazee Street. The land in question, being 47.5 feet in width by 200 feet in length, lies in the pathway of Brazee Street if Brazee Street were extended easterly, abuts the north line of the premises owned by plaintiff, and if opened to travel would furnish an outlet upon East Twenty-Eighth Street. The plaintiff rests his claim for relief upon the proposition that the tract of land under consideration is a dedicated street, and in support thereof relies upon the deed he received from Charles Cardinell, the reference made to the property and manner of description contained in the latter’s will, a blue-print exhibited to plaintiff at the time of the purchase of the property, and declaration made by the grantor, Charles Cardinell, to his grandson that he had platted the property and caused it to be staked off in lots, and one of similar import made to plaintiff.

1. An unbroken line of cases decided by this court decisively establishes the doctrine that a street may be dedicated by parol or by acts of the owner of the land *332 through which the street extends, amounting to an estoppel in pais: Huck v. Wakefield, 58 Or. 549 (115 Pac. 428); Oregon City v. Oregon & California R. Co., 44 Or. 165 ( 74 Pac. 924 ); Morse v. Whitcomb, 54 Or. 412 ( 102 Pac. 788 , 103 Pac. 775 , 135 Am. St. Rep. 832 ); Carter v. City of Portland, 4 Or. 339 .

2. In such a case the sale and conveyance of lots so bounded upon a street imply a grant or a covenant to the purchaser that the street indicated shall be and remain open to the use of the public and to the purchaser of the property thereby served.

3. However, the evidence offered to establish a dedication in parol must unequivocally show the dedicatory intent of the owner as expressed in his visible conduct and in such outward manifestations as are sufficient to inculcate the belief in those concerned that the owner intended to dedicate his land to the particular use alleged: Morse v. Whitcomb, 54 Or., at page 418 ( 102 Pac. 788 , 103 Pac. 775 , 135 Am. St. Rep. 832 ); Lankin v. Terwilliger, 22 Or. 97 ( 29 Pac. 268 ); Parrott v. Stewart, ante, p. 254, ( 132 Pac. 523 ), decided by this court May 27, 1913.

Entering upon an analysis of the evidence offered by plaintiff to establish a dedication of the street, we are compelled at the outset to dismiss from a consideration of this case all reference to the map or blue-print introduced in evidence other than the simple evidentiary fact which arises from the statement of the witness that a map or blue-print of the premises had been made by Charles Cardinell. Plaintiff in his own behalf gave voice to the only testimony adduced concerning the map in answer to the question whether Charles Cardinell had a map or blue-print of the ground at the time of its acquirement by plaintiff: “Yes, he had a blue-print map, something like that; and he said, ‘Eva, bring out those maps.’ He had quite a lot of them *333 in the drawer there. He says, ‘Bring ont those maps, and we will point ont to Mr. Jones where Brazee Street runs along, and he can go out and measure the place off himself’; so the map was produced, and I believe it is in his residence now. I don’t think they have ever taken any ,of those effects away. I believe the map could be found there yet; but, however, it was shown distinctly on that map, Brazee Street, passing through the Bowering tract to Fernwood tract.”

4. Objection was made by counsel for the defendant to the admission of the testimony, but it was overruled by the court. Subdivisions 1 and 2 of Section 712, L. O. L., provide: “(1) When the original is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in Section 782;- (2) when the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default. ’ ’

Unless a legally sufficient reason is shown for not so doing, proof of the contents of a document must be made by producing the document itself. The record disclosed by this case indicates no effort was made to produce the original map or plat, although the plaintiff testified he believed “the map could be found there yet,” meaning the home of the decedent grantor, Charles Cardinell. This court has repeatedly held, in response to Section 712, L. O. L., that, before a party can give secondary evidence of the contents of a writing, he must show that he cannot produce the original in a reasonable time by the'exercise of reasonable diligence: Wiseman v. N. P. R. R. Co., 20 Or. 425 ( 26 Pac. 272 , 23 Am. St. Rep. 135 ); Bowick v. Miller, 21 Or. 25 ( 26 Pac. 861 ); Krewson v. Purdom, 15 Or. 589 ( 16 Pac. 480 ); Harmon v. Decker, 41 Or. 598 ( 68 Pac. 11, 1111 , 93 Am. St. Rep. 748 ); Price v. Wolfer, 33 Or. *334 15 ( 52 Pac. 759 ); Hicklin v. McGlear, 18 Or. 137 ( 22 Pac. 1057 ); Reimers v. Pierson, 58 Or. 86 ( 113 Pac. 436 ).

5. Counsel for plaintiff contend with much force that the intent to dedicate the strip of land in controversy is found in the language contained in the deed from Charles Cardinell to plaintiff and in the words employed in the last‘will of said Cardinell. We shall treat the two instruments together as they invoke the same character of reasoning. In the deed conveying the plot of ground 200 feet square to plaintiff, the property is described as: “Commencing at the southeast corner of Brazee Street and Twenty-Eighth Street; * * thence northerly 200 feet to Brazee Street; thence westerly along the line of Brazee Street. * * ” The will refers to the same property as: “ 200 feet square at the corner of Brazee and Twenty-Eighth Streets.” In fact, each deed, forming the link in the title held by defendant, repeats the description of plaintiff’s land with its reference to Brazee Street as a descriptive point. It is to be noted that nowhere in the deed nor in the will can be found a specific covenant or statement as to the existence of the street. The only reference to the street is for the purpose of the description, with no intention upon the part of the grantor, Charles Cardinell, of conferring upon plaintiff, as appurtenant to the premises, the right to the use of the land as a street. In Lankin v. Terwilliger, 22 Or. 97 ( 29 Pac. 268 ), a case of much analogy, Mr. Justice Bean stated: “The question in all such cases is whether the road or way is intended as the boundary of the granted premises. Where the land is conveyed by a certain and definite description, as by metes and bounds, the fact that the boundary as described in the conveyance may be coincident with the line of the way does not of itself raise the implication that *335 such way was intended as the actual boundary or confer upon the grantee the right to use such way as appurtenant to the granted premises, bnt it must appear from the conveyance, either directly or by fair inference, that it was intended to bound the land by the road or way”: King v. Mayor, 102 N. Y. 171 ( 6 N. E. 395 ); Atwood v. O’Brien, 80 Me. 447 ( 15 Atl. 44 ); Parsons v. Johnson, 68 N. Y. 62 ( 23 Am. Rep. 149 ). The evident intention of Charles Cardinell, as revealed by the documentary evidence, was to convey to plaintiff a tract of land 200 feet square without reference to Brazee Street as an easement appurtenant to the land transferred to plaintiff, as the land is definitely described by metes and bounds, and Brazee Street is made mention of only as a means of description ; that is, to make certain the beginning point, and then to describe the northerly and westerly courses of the land conveyed.

In negativing an intention upon the part of Charles Cardinell to dedicate a street, we deem it worthy to recall that, in the will devising the north half of subdivision of tract 5 of the Bowering tract to Charles B. Cardinell, which includes the strip desired to be decreed a thoroughfare, no mention is made of Brazee Street other than as a matter of description in the clause referring to plaintiff’s property. This believe significant as an outward manifestation on the part of the testator that he referred to Brazee Street as a convenient descriptive monument rather than as an actual boundary of the land purchased by plaintiff. Nowhere does the record disclose that anyone has ever treated the land as a street. On the contrary, it has been fenced and made to serve the private uses of plaintiff continuously since the execution of the deed to him.

*336 In view of the facts and the record presented by plaintiff, we feel the testimony insufficient to disturb the decree of the lower court, and therefore affirm the same. Affirmed.