Lead Opinion
On Motion por Rehearing.
It is further considered and adjudged by the Court that the said cause be remanded to the said Circuit Court of Cole County for a new trial; and that the said appellant recover against the said respondents its costs and charges herein expended, and have execution therefor.
Concurrence Opinion
Limited CONCURRING OpinioN.
My vote concurring in the reversal and remanding of this cause generally, and without directions to enter judgment for the appellant city, is based on the following reasons. In Division 2 the present majority opinion of the court en banc was adopted by all the judges thereof. But respondents’ counsel filed a motion for rehearing verified by the affidavit of counsel [as in the case of motions for new trial in the trial courts alleging newly discovered evidence] stating that the so-called "ancient document” plat shows each square block as a square inch, representing 400 feet, and each inlot as of a width of [4 inch, making it 100 feet wide, whereas the records definitely show each square block is 417.5 feet- wide, and each inlot 104 feet, 4.5 inches wide. In other words, as to the square blocks there is-an error of 17.5 feet, and-as to the inlots- one of 4.5 feet. The affidavit further alleges these errors apparently-'are- compensated for by showing the streets wider than they really are.
North and south, the plat covers all the territory between the Missouri Biver and Atchison Street; and east and west nearest to the Biver it extends from Clark Street to a point over six blocks west of the mouth of Ware Creek, and thence angles northeasterly, or easterly, back to Atchison Street. The plat includes all the main business district of Jefferson City and the South Side, and a substantial part of the residential section. The principal opinion shows that up to 1898, fifty years ago, inlots and outlots were conveyed by number, but after that by metes and bounds — indicating some uncertainty as to the former descriptions.
I find nothing in the opinion showing that conveyances within the area covered by the plat, and according thereto, have been found *1032 feorre’ct through the years. Its origin is [43V] obscure. Nevertheless the' principal opinion admits it in evidence although the trial court rejected it. The statute of limitations does not run against the City. Nad if the plat is incorrect the consequences may be serious as to milch valuable real estate. Because of these facts Division 2 transferred the cause to the court en 'banc on the court’s own motion in order that it might be reargued. I am unable to see that it has been cleared up. While unable to say on the record that the judgment of the trial court should be affirmed, neither do I think it should be reversed outright. In my ópinion the cause should be reversed and remanded for another trial, at which these questions may be settled.
Dissenting Opinion
(dissenting) — I respectfully dissent from the holding of the. principal opinion written by Commissioner Bohling and.-adopted as .the opinion of the,Court ?n Banc. If I correctly read the principal opinion, it holds that Judge Blair erred in excluding the purported map or plat (City’s Exhibit D), and, upon the basis of that exhibit, decree title to the small parcel of land in question here to be in the defendant City
From a study of the transcript and an examination of the exhibits it -is my conclusion that even if Exhibit D be considered as admitted in evidence the City’s contentions are without record support.
I agree with the views of the trial judge as expressed in his memorandum opinion filed in the cause and incorporated in the transcript that-Exhibit D was properly excluded, and that, if it were considered as admissible and received in evidence, it would not support the City’s case.
-While' Exhibit D purports upon its face to have been drawn by one Erich Stump, and bears the figures 1849, and while it has hung on.the wall in the office of the Recorder of Deeds in Cole County for-twenty-six years, there is no evidence in the record here that it was made in the year 1849 and no evidence that it is any copy of any 1849 document:
Inlots 295 -and 296 were originally conveyed as such Inlots, not fractional Inldts, by the State of Missouri in 1844 and 1840.
-..'There is no evidence of identity of Erich Stump, nor any showing that he was an official or unofficial person. There was no proof under what authority, if any, Exhibit D was made, and no testimony whatever as to its origin. Other than as above indicated there was nothing to-establish when"it came into the Recorder’s Office, who made it, who .brought-it'there, .why it was brought there, why it was on the wall, who ordered it to be placed there or why it had never been officially-inventoried or recorded in that office as an official document. No figures or scale of measurement appear on the plat to indicate the length or-width of any block, Inlot, Outlot, street, or alley. In fact, *1033 the Missouri River is shown at the bottom of the plat, ■ when in fabt it is north of Jefferson City. ■ :
While counsel for the City, in colloquy, asserted their belief in:the one-time existence of an original of Exhibit D,:a search, of..the record filed here reveals no proof - whatever that any original'"ever existed! There is no proof that Exhibit D was even a copy of any claimed original, and no proof as to what any claimed original may have tended to establish. It is my view that to rule that Judge- Blair erroneously excluded and refused to consider Exhibit D, we are compelled to presume, and without any proof, that merely because -the Legislature in 1822 directed such a plat or map to be made, that-an-original plat or map was in fact made. And from, the mere historical facts that upon separate occasions the State Capitol building and the Cole County Court House were many years ago destroyed by fire, I do not think we can presume that there was 'an original plat in one of those buildings, and that it was destroyed by fire, or that all official records were thus destroyed. The testimony of an official in the office of -the Secretary -of State and of the Recorder of Deeds that after a’search each had failed to find any original map in their respective offices, in my opinion fails to establish that, if an original plat ever existed; it does not how exist somewhere, and that further search, may not’ reveal it. There is no proof as to' what any original map might show; if any such ever was in existence. Under this state of thé'record,-I see no ground for the admission of any secondary evidence.'- '
[438] It is asserted in the City’s brief that Exhibit D is an ancient document, and, in the alternative, that it is admissible as secondary evidence, it being, it is asserted, a copy of an original lost or'destroyed document. Under the ancient document rulé certain 'ancient instruments are held to be admissible under certain circumstances. But that rule applies only to the original ancient document. Exhibit D is not established to be an original at all. The ancient- document rule does not apply to any document, however ancient,' for which-it is claimed only it is but a
copy
of an ancient document. Jones Commentaries on Evidence (2nd Ed.), Vol. 3, Sections 1118, et seq. Bell v. George,
After study of this record I find that I am unable to agree with the holding'of the principal opinion that inasmuch, as the Secretary of State was required to have a plat made and deposited in .his, office that any original plat was actually ever made; or that, such original *1034 plat, if one ever existed, has been lost or destroyed; or that there exists here any record foundation upon which to admit Exhibit D as secondary evidence. The principal opinion seems merely to assume both the existence and the destruction of an original. I do not believe the courts can indulge any such presumptions. It is my opinion that the facts and. that the inferences which the record compels forbid it.
The principal opinion seeks to distinguish our Bell v. George case by stating that in that ease “there was no showing, as here, that the original or other competent copy of the document had been lost or destroyed and was unavailable”, etc. ■ I am unable to find in this record anything upon which I can presume any original ever existed, or was ever thereafter lost or destroyed.
In any event, neither Exhibit D, nor any instrument of title I have found in the record, expressly reserves’ to any one any title to any real estate between the southern boundary of Inlots 295 and 296, as those boundary lines appear on Exhibit'D, and the thread or center of Weir’s Creek, which is only an inland creek, non-tidal and non-navigable. It is my opinion, therefore, as I read the law, that plaintiff’s Inlots 295 and 296 extend under the law beyond the line shown on Exhibit D to the center or thread of Weir’s Creek and necessarily include therein the land in controversy here. Brown v. Wilson,
For these reasons it is my opinion that Judge Blair decided the case correctly. I would affirm hip judgment.
Addendum
The foregoing opinion by BOHLING, C., in Division No. 2, is adopted as the opinion of the Court en Banc. Tipton, Clark,Douglas, Hyde, JJ., and Leedy, C.J., concur; Ellison, J., concurs except as to remand with directions, he believing it should be a general remand; Conkling, J., dissents.