Hudson v. Kootenai Power Co. Ltd.

Respondent Hudson commenced this action against the Kootenai Power Company to compel the company to remove its poles and wire line from a strip of land running across block "U" in the city of Coeur d'Alene. The Kootenai Power Company and the city contended that the land was a public alleyway of the city and that the company was operating its distributing system in the alley by right of a franchise from the city. The court found in favor of the city to the effect that it was a public alleyway, and judgment was entered in favor of the Power Company. Respondent Hudson was granted a new trial on the ground of newly discovered evidence from which order the city of Coeur d'Alene appealed.

Respondent asked for a new trial that he might, by means of newly discovered evidence, show that changes other than for the purpose of properly correcting the plat-book, one of the records of Kootenai county, had been made. The application for a new trial is supported by affidavits of the proposed witnesses. The plat, or record in the plat-book, made by the county recorder or by his authority and on file with him is not an original but is a copy or transcription. While a recording officer may amend his record to accord with the facts by correcting mistakes, supplying omissions, altering or amending the same (Mott v. Reynolds, 27 Vt. (1 Wms.) 206; Jayv. Inhabitants of Carthage, 48 Me. 353; Glencoe Board ofEducation v. Trustees, 74 Ill. App. 401, 174 Ill. 510,51 N.E. 656; State v. Cornell, 56 Neb. 143, 76 N.W. 459), such damages may be made only to make the record speak the truth and only by or under official authority.

Though the record is prima facie evidence of the facts therein stated (C. S., sec. 7954), such prima facie showing may be overcome if the evidence is clear and convincing that unauthorized changes or interlineations have been made. (Hommelv. Divinney, 39 Mich. 522; Phillips v. Big Sandy Co., 149 Ky. 555,149 S.W. 957; Northwestern Mortgage Trust Co. v. Levitzow,23 S.D. 562, 122 N.W. 600; 2 C. J. 1278, sec. 195.)

The determination of the effect of the offered evidence was for the trial court and the court's action in granting a new trial is affirmed. Costs awarded to respondents.

Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.