Schell v. City of Jefferson

[6] I respectfully dissent from the holding of the principal opinion written by Commissioner Bohling and adopted as the opinion of the Court en 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 Inlots, 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, the Missouri River is shown at the bottom of the plat, when in fact 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 now 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 the 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 rule 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, 274 Mo. 17, 204 S.W. 516; Laclede Land and Imp. Co. v. Goodno (Mo. Sup.), 181 S.W. 410; McCleery v. Lewis, 104 Me. 33, 19 L.R.A. (N.S.) 438; Patterson v. Collier, 75 Ga. 419, 427; Jones v. Morgan,13 Ga. 515; Ball v. Loughridge (Ky.), 100 S.W. 275; Schunior v. Russell (Tex.), 18 S.W. 404; 32 C.J.S., sec. 746, page 664. I do not think Exhibit D was admissible under the ancient document rule. It is merely contended, but it is not proved, that Exhibit D is a copy.

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 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 case "there was no showing, ashere, 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.

[7] 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, 348 Mo. 658,155 S.W.2d 176; Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. 996; Whiteside v. Oasis Club (Mo. Sup.), 187 S.W. 27; Felder v. Bennett, 2 McMull (S.C.) 44; Gould on Waters (3rd Ed.) 196; Angell on Water Courses, Par. 11,

For these reasons it is my opinion that Judge Blair decided the case correctly. I would affirm his judgment.

ON MOTION FOR 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.