133 P. 354 | Or. | 1913
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.
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
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.
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.