Parker v. Thomson

21 Or. 523 | Or. | 1892

StrahaN, 0. J.

Several questions arise upon this appeal, but the discussion of each of them is not deemed essential to a proper disposition of the cause.

The equity upon which the plaintiff proceeds is the alleged mistakes mentioned in the amended complaint. It may be seriously questioned whether or not the property is sufficiently described, which it is alleged was omitted through mistake. In such case, it is not sufficient to allege the mistake, and then to allege that by reason thereof a parcel of property not specifically described was omitted. The very descriptive words or the correct description of the property omitted through mistake should be alleged. (Hyland v. Hyland, 19 Or. 51.) But waiving any objection of this nature, I think where a party invokes the aid of equity to correct an alleged mistake, he ought to show that the contract which he seeks to reform was made upon a valuable consideration, by alleging what the true consideration was, in order that the court might know whether or not the consideration was in fact valuable and a sufficient foundation for the equity which the party is seeking to enforce. But this objection was not specially insisted upon at the argument, and may be passed without further mention.

The real difficulty with which the appellant has to contend, arises out of the evidence. Looking at the evidence offered on the part of the plaintiff only, it is lacking in that precision, accuracy, and definiteness necessary to enable the court to make the decree which he seeks. The question whether there was a mistake or not, is left in doubt. (2 Pom. Eq. § 862.) Then, if there were some mistake or inaccuracy in the deed, its nature or extent is not apparent, nor is it in any manner made plain to the court by the evidence what were the descriptive words omitted from the deed through the alleged mistake. To say that he was to have a mile of the tide land or fishing grounds on Ohanna or Necanicum creek, is not sufficient. The plaintiff in his own evidence does not concede there was any mistake, but only that he was lately advised by his counsel that there was. After a very careful consideration of the evidence, I am unable to reach any other or different conclusion from that found by the court below. The plaintiff was bound to prove the alleged mistake by a preponderance of the evidence, and in this he has signally failed.

There was considerable comment at the argument as to the meaning of the term fishing grounds, used in Morrison’s deed to the plaintiff, offered in evidence. The construction of that deed is not necessarily involved in this case, nor can the court properly construe it at this time so as to affect the rights of the parties. Whether or not extrinsic evidence is admissible to apply these words to the thing granted, was not presented, nor was any evidence submitted on that subject; but standing alone and unaided by extrinsic evidence, it is manifest to us that those words can have no such extensive signification as was suggested by the appellant’s counsel. The Century Dictionary, title, Fishing-banks, defines them as a fishing ground of comparative shoal water in the sea. Thus on the Atlantic coast of North America the banks of Newfoundland are famous fishing grounds, and another about twenty miles off Cape May is well known. We have been unable to find any authority, and counsel cited none, holding that the banks of a tide stream or slough or the beach of the ocean have ever been described as fishing grounds.

We find no error in the decree appealed from, and it must be affirmed.