38 P. 623 | Or. | 1894
Opinion by
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
1. Section 685, Hill’s Code, provides that: “Where,
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
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
Affirmed,