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ways, so as to induce an inquiry as to the to set forth the outlines of the survey, was source, nature, and extent of the easements, such prepared, and 1,000 copies were printed, and grantee was estopped to deny that the original | owner had made a parol dedication binding up-|
entitled: on it, although it secured title for valuable con.
| “Gearhart Park, as laid out and recorded by sideration by mesne conveyances.
M. J. Kinney, Clatsop Co., Oregon. Regular [Ed. Note.-For other cases, see Dedication,
lots, 50x100. Scale, 1 inch 300 ft. W. I. CrawCent. Dig. § 77; Dec. Dig. 39.]
ford, Gen. Agt. Gearbart Park, Seaside, Ore
gon." Department 1. Appeal from Circuit Court,
The printed plat contains lines representClatsop County; J. A. Eakin, Judge.
ing cross streets extending from Cottage aveSuit by H. B. Nicholas against the Title &
nue on the west to the Astoria & South Trust Company. From the decree, both par- Coast Railroad on the east, which streets ties appeal. Modified and affirmed.
are numbered, commencing at the north, This is a suit to determine an adverse in- from First to Twelfth, respectively. Block terest in real property. The complaint al. 23, as indicated, is situated immediately east leges in effect that the plaintiff, H. B. Nich- of a creek and bounded on the north by Sixth olas, is the owner and in the possession of street, on the east by Summit avenue, and on block 23 in Gearhart Park, Clatsop county, the south by Seventh street, each being desOr.; that this block is bounded on the east ignated by parallel lines which, according to by Summit avenue, which is 60 feet wide, the scale specified, represent the streets as and on the south by Seventh street, of the being 60 feet wide. The map referred to same width; that plaintiff has an easement depicts all the land embraced in Gearhart in and a right to the use of the avenue and Park as segregated into a park, lots, blocks, street mentioned to their full width bordering streets, etc. upon that block; that the defendant, the Mr. Kinney and his wife, on August 21, Title & Trust Company, a corporation, claims 1890, duly acknowledged a plat of Gearhart all that part of Seventh street so described, Park, whereon the east end of Seventh street the east half of Summit avenue at the place is represented as terminating at the stream specified, and also some interest in such mentioned, which is called Neacoxie creek. block, which claims are without right and Summit avenue is indicated as being the void.
first highway east of the creek, extending The answer denies the material averments south from First street to the southeast corof the complaint, and alleges in substance ner of block 23, and is marked by parallel that Summit avenue is only 25 feet wide, and lines denoting a space of 25 feet. Kinney that Seventh street does not and never did and his wife on September 2, 1890, executed extend south of the block mentioned, setting to Mrs. Winnie H. Waite a deed conveying: forth the facts whereby the defendant as
"All of block number twenty-three in Gearhart serts a title to the land joining the block on Park, in Clatsop county, Oregon, as said park the south, and also the premises bounded by has been laid out by us and recorded in the office a line 25 feet east of the east border of the
of the recorder of conveyances of said county." block specified. The prayer of the answer is
The plat so acknowledged was filed for in part:
record September 11, 1890, and Mrs. Waite's "That plaintiff be forever barred and estopped
deed was also filed for the same purpose Nofrom making or asserting any claim in or to vember 24th of that year. Mr. Kinney, in said property and the use and enjoyment of said | July, 1899. appointed Newton McCoy his streets, otherwise than are set forth and described in the duly recorded map and plat there
agent to sell lots and subscribed his name to
a writing which so far as material herein The reply put in issue the allegations of
reads: new matter in the answer, whereupon the
"In consideration of one dollar and valuable
services to be performed by said Newton Mccause was tried, resulting in a decree estab-10
Coy, we hereby give him for three months from lishing Seventh street south of block 23 to the date hereof the exclusive sale of the real be 60 feet wide, and Summit avenue east of property in Gearhart Park at the prices indicatthat block to be only 25 feet in width, and
ed upon the plat of said park hereto attached,
marked 'Exhibit A,' and made a part hereof." both parties appeal.
The plat thus referred to, with the memKenneth L. Fenton, of Portland (W. D. Iorandum attached, was duly identified and Fenton and Ben C. Dey, both of Portland, on received in evidence, and is a duplicate of the brief), for appellant. R. W. Nicholas
the printed plat, having noted thereon in and W. C. Nicholas, both of Portland (New
red ink, between lines representing lots, vaton McCoy, of Portland, on the brief), for re rious numbers ranging from 50 to 500. Kinspondent.
ney also conveyed away block 24, which lies
immediately north of block 23, but is sepMOORE, O. J. (after stating the facts as arated from it by Sixth street. He on Janabove). The evidence shows that in the year uary 24, 1905, executed to the Theo. Kruse 1888 M. J. Kinney purchased a large tract of Catering Company, a corporation, a deed of land in Clatsop county, Or., bordering on the all lots, blocks, and tracts in Gearhart Fark Pacific Ocean, and soon thereafter caused a then remaining unsold. This conveyance inpart of the premises to be surveyed into cluded all the land in the park east of the
court of Clatsop county made an order, Jan-1 highways by which the land was bordered uary 3, 1906, vacating all the streets and ave- he stated : nues east of the creek that are noted on the “And at the time my understanding with the recorded plat. except Sixth street and the agent was that there were 60-foot streets around
the whole block." parts of Fifth street and of Summit avenue which are north and east of blocks 23 and
Alluding to white stakes which he then 24. All the unsold lots, blocks, and tracts in
saw driven in the ground to indicate the the Park, which were so owned by the cor-width
or width of such streets, and comparing them poration last named, were duly transferred
with a stake which had been received in by mesne conveyances to the defendant,
the defendant evidence, he testified: which became vested with the legal title
"My remembrance is refreshed by this very
stake. I particularly noticed and observed that thereto March 29, 1910.
they were rather larger than what was ordinariSixth street, between blocks 23 and 24, ly put into plattings, it seemed to me. * * was excavated to a depth of 15 feet or more Q. Do you remember any representations that
were made with respect to these streets, furbelow the surface of the ground at that ther than what is shown by the map? A. No: place. Thereafter, to wit, on May 11, 1911, I think nothing more than that I was given to Mrs. Waite and her husband executed a war understand that they were all 60-foot streets. ranty deed, conveying "all of block 23 of
22 of Why I mentioned this is the fact that in buying
that block, as the building portion was shortened Gearhart Park, in Clatsop county, Oregon,"
on the west side by the stream, Neacoxie, I was to the plaintiff, who had paid for the land be- distinctly informed that the streets bordering it fore he examined the records of that coun
(the block) on the south, east, and north were
60 feet, which would exclude any one building 8, and without knowing teal the printed closer or encroaching on my block lines, thus. plat had not been recorded. The defendant | making it more desirable." caused a survey to be made of its real prop- On cross-examination this witness was erty east of the creek, immediately south of block 23 when extended to the railroad, and “You bought this property more upon your on November 4, 1911, acknowledged a map own view of the premises, by going upon it and thereof whereon the land portrayed is desig- stepping the distances off, rather than by this sonated as "Woodland Park Addition to Gear
called plat, here marked 'Plaintiff's Exhibit A.'
A. Yes, sir; except by stepping distances off. hart Park," which plat was filed for record Q. You were not guided by that to any extent? on the 13th day of that month. By the lat-A. I am not positive but when Mr. Crawford ter survey no street borders upon the south
and I went over the ground that he had one of
these maps (meaning the printed plat), and as line of block 23. No improvement of any
we passed along and would look at a block we highway east of the creek has been made, would verify it on the map, until I made my except on Sixth street. Teams drawing wag- selection. We must have had something to guide ons have passed back and forth along Sum
us as well, and I think he used one of these pub
I lic plats, which he took from his office or carmit avenue for some distance south of Sixth ried in his pocket; but they had them distributed street, though much of the way is covered all around, you know." with standing timber. If the angle of re- ! This witness further testified that lots pose be assumed as 45°, and Summit avenue were offered him by Mr. Crawford south of is only 25 feet wide, as decreed, it would block 23. necessarily follow that, in cutting down that. The plaintiff, an attorney, testified that, highway to intersect Sixth street, the bottom when he purchased block 23, he found the of the banks of the excavation would termi- stake set to mark the southeast corner; that nate in a line 212 feet above the grade imme- 60 feet east thereof he found another stake, diately to the north.
which he subsequently broke off, and the latThe plaintiff in the summer of 1911 orally ter post, having been identified, was received informed the defendant, and on August 29, in evidence; that he thereafter found north 1912, and October 1st of the latter year, re- of block 23 eight other white stakes, similar spectively, gave to it written notices, that he to the one last referred to, which posts were claimed and should attempt to establish an set to mark the corners of blocks, in parallel easement 60 feet in width on the east and lines 60 feet apart, designating Summit avesouth of his land. No acknowledgment of nue as originally surveyed and appearing on his claim having been made, this suit was the printed plat; and that Mr. Waite, a instituted May 5, 1913, and terminated as brother-in-law, showed him a duplicate of the bereinbefore mentioned. E. P. Waite, who printed plat before buying the block, wherenegotiated the purchase of block 23 for his upon the witness advised that the premises wife, testified that he bought the land from could be safely purchased, since the streets M. J. Kinney through the latter's agent, W. I. bordering thereon were 60 feet in width. Crawford. In referring to the printed plat, a W. R. Nicholas, the plaintiff's son, who is duplicate of which was received in evidence, a surveyor, corroborates his father's testithe witness stated upon oath that it was mony in respect to the discovery of the stakes similar to the one which he saw in the office and the places where they were standing. of such principal and agent at the time he This witness was unable to find any stakes purchased; that in company with Mr. Craw- set at 25 feet, or any other distance less than ford he personally examined block 23 before 60 feet, east of the west line of Summit avecreek marking the south line of Seventh , equity will enjoin interference with an ownstree:.
er's easement, when the injury complained of M. J. Kinney testified that he never dedi. is irreparable, or the intermeddling is concated or intended to give to the public any tinuous, or the remedy at law for the recorreal property south of block 23; that he may ery of damages will be inadequate. 10 Am. have had an agreement with some intending & Eng. Ency. Law (2d Ed.) 431; 14 Cyc. purchasers as to the sale of lots, but did not 1216; Washburn, Easements (4th Ed.) 747; think he had delivered to them any deeds Church v. Portland, 18 Or. 73, 22 Pac. 528, until the plat was recorded; that he marked | 6 L. R. A. 259; Morse v. Whitcomb, 54 Or. in lead pencil the prices to be demanded for 412, 102 Pac. 788, 103 Pac. 775, 135 Am. St. lots on a plat which he gave to Mr. Crawford, Rep. 832; Gyra v. Windler, 13 Ann. Cas. 841. who made many sales for him; that he had  A court of equity thus having general no surveys made, except such as are delineat- jurisdiction to protect an easement at the ed on the recorded plat; and that he never suit of an owner, any defect in a complaint, intended to dedicate any part of the premises interposed for that purpose in such forum, in conformity with the printed plat, in refer- is waived when the defendant fails to demur ring to which he stated upon oath:
for lack of jurisdiction of the subject-matter "I never saw this plat until after it was print- and also joins in an application for equitable ed. Q. Do you remember when it was printed ? relief. Kitcherside v. Myers. 10 Or. 21. 23: A. No; I think not. I think Mr. Crawford started out to advertise this property considera- |
O'Hara v. Parker, 27 Or. 156, 39 Pac. 1004; ble, and he got out this, and he got out an ad-Security Co. v. Baker County, 33 Or. 3 vertisement sheet, and he got it out before I Pac. 174; State v. Blize, 37 Or. 404, 61 Pac. saw him; when I did see him, I called his at- 735; Moore v. Shofner, 40 Or. 488. 67 Pac. tention to some irregularities in it, but it was too late to stop it, because it had already been
511; Investment Co. v. Garbade, 41 Or. 123, printed."
68 Pac. 6; Killgore v. Carmichael, 42 Or. This witness, referring to Seventh street | 618, 72 Pac. 637; Maxwell v. Frazier, 52 east of the creek, testified:
Or, 183, 96 Pac. 548, 18 L. R. A. (N. S.) 102; "I think it was my intention that there should | Bradtl v. Sharkey, 58 Or. 153, 113 Pac. 653; be a street running along south of block 23 and Carroll V. McLaren, 60 Or. 233, 118 Pac. blocks 37 and 36, but it was not dedicated.” 1034; Bowsman v. Anderson, 62 Or. 431, 123
In answer to the question, "Did you ever Pac. 1092, 125 Pac. 270. The defendant by authorize Mr. Crawford to get out this map failing to demur to the complaint, and by shown as Plaintiff's Exhibit A ?” he replied, praying for affirmative relief in its answer, "I certainly did not." On cross-examination, thereby waived all questions of jurisdiction, however, Mr. Kinney admitted he had two since a court of equity has the right to hear surveys made of the land west of the creek; and determine suits involving easements. but, the first having been found to be er-  The important question to be considerroneous, he caused a resurvey to be made. ed is whether or not the act of Mr. Kinney Referring to the printed plat, to which was in appointing Mr. Crawford to sell his lots attached the written appointment of Mr. Mc- and blocks in Gearhart Park, and in knowCoy, the witness stated upon oath that he ingly permitting that agent to exhibit to indid not write the figures appearing in red tending purchasers a duplicate of the printed ink upon that map, nor did he believe he plat, upon which Summit avenue was repreauthorized such notation. Alluding to the sented as being 60 feet wide and Seventh representations imputed to his agent in nego- street, east of Neacoxie creek, as of equal tiating a sale of block 23, he further testi-width, estops the defendant as a subsequent fied:
grantee from denying the representations so "Mr. Crawford had no right to sell any prop- contained on the printed plat as against the erty contrary to the abstracts and plats that I plaintiff as the successor in interest of Mrs. furnished him; if he did, he went beyond his duty. Q. Mr. Crawford was your duly author
Waite the original purchaser of block 23. ized agent in the sale of the property, all the The authority of an agent to bind his prin. time from the time of platting, until when? A. cipal in contracts made with a third party He sold property during the latter part of 1890, lis mensured, not only by the agent's erpress and during the year 1891. Q. Weil, wasn't he your agent in contracting for the sale of prop
delegation of power, but also by that which erty in Gearhart Park, before you filed the plat he is held out by the principal as possessing, for record ? A. Limited only."
provided, however, the third party had reaThe foregoing is deemed to be a fair sum-son to believe and did believe the agent was mary of sufficient of the evidence to illustrate acting within and not exceeding his authorthe legal principles involved.
ity, and such party would sustain a loss if  It is argued by defendant's counsel that the contract was not regarded as that of the the plaintiff had a full, complete, and ade-principal. Hardwick v. State Insurance Co., quate remedy at law for the redress of his 20 Or. 547, 26 Pac. 840; Hahn v, Guardian supposed grievances, thereby precluding a Assurance Co., 23 Or. 576, 32 Pac. 683, 37 resort to a court of equity, and, such being Am. St. Rep. 709; Connell v. McLoughlin, 28 the case, an error was committed in denying Or. 230, 42 Pac. 218; Harrisburg Lumber a motion to dismiss the suit. No demurrer Co. v. Washburn, 29 Or. 150, 156, 44 Pac. to the complaint appears to have been inter- 390; Durkee v. Carr, 38 Or. 189, 63 Pac. 117;
80 Pac. 482, 7 Ann. Cas. 1035; Rumble v. that plat to designate particular lots and Cummings, 52 Or. 203, 95 Pac. 1111.
blocks when negotiating with Mr. Waite for  It will be remembered that Mr. Kinney the sale of block 23, before the second plat testified Mr. Crawford possessed only limit- was filed for record. Whether or not Mrs. ed authority to represent him in selling lots Waite's deed was delivered when it was acand blocks. This statement, as between knowledged is impossible accurately to deterthem, is undoubtedly true as a matter of mine from the evidence before us. Mr. Kinfact; but as to a third person who dealt ney's testimony is to the effect that he bewith the agent such sworn declaration is not lieved no deeds were delivered to purchasers a correct expression of the law' applicable to until after the plat was recorded, though the circumstances of this case. By permit- some deeds were acknowledged prior thereto. ting Mr. Crawford to exhibit to intending It is believed the printed plat antedates the purchasers à duplicate of the printed plat, making of the recorded plat, and that the entitled “Gearhart Park as laid out and re- former was used by Mr. Crawford in negocorded by M. J. Kinney, * * W. 1. tiating a sale of block 23, and employed in Crawford, Gen. Agent," the principal thereby pointing out on the ground the contemplated tacitly, at least, represented that the agency highways by which the premises were borwas not special and that the plat so display-dered. ed had been duly recorded. From Mr. Kin. It has been repeatedly held that when an ney's sworn statement that he marked in owner of land causes it to be surveyed into lead pencil the prices of lots and blocks on lots, blocks, streets, and alleys, pursuant to a plat which he delivered to Mr. Crawford, which measurements a map is prepared, repit is reasonable to infer that such map was resenting the lines run upon the ground, and a duplicate of the printed plat. This deduc- he exhibits that map to intending purchasers tion is strengthened by the written appoint- in consummating the sale of real property in. ment of Mr. McCoy attached to another dicated on the plat, he thereby irrevocably printed plat on which were noted in red ink dedicates to the public the contemplated
figures representing the prices demanded for highways, parks, and commons thus designat· the separate pieces of real property which ed, and no acceptance by any corporate auwere offered for sale. As to who wrote such thority is essential to give validity to the numbers on that plat is immaterial. The con- donation. Lownsdale v. Portland, 1 Or. 398, clusion seems irresistible that Mr. Kinney Fed. Cas. No. 8,579; Leland v. Portland, 2 knowingly permitted intending purchasers to Or. 46; Carter v. Portland, 4 Or. 339; Meier believe the printed plat had been duly re-v. Portland Cable Ry. Co., 16 Or, 500, 19 Pac corded and also that he held out Mr. Craw- 610, 1 L. R. A. 856; Hogue v. Albina, 20 Or ford as his general agent in negotiating sales 182, 25 Pac. 386, 10 L, R. A. 673; Steel v of real property in Gearhart Park.
Portland, 23 Or. 176, 31 Pac. 479; Spencer Did Mr. Kinney, by such representations v. Peterson, 41 Or. 257, 68 Pac. 519, 1108, and conduct. make a parol dedication of Nodine y. Union, 42 Or. 613, 72 Pac. 582; Summit avenue to the width of 60 feet east Oregon City V. O. & C. R. Co., 44 Or. 165, of block 23, and of Seventh street of equal 74 Pac. 924; Christian v. Eugene, 49 Or. 170, width extending south of that block, as indi-89 Pac. 419; Moore v. Fowler, 58 Or. 292, cated on the printed plat, notwithstanding 114 Pac. 472; Kuck v. Wakefield, 58 Or. 549, different designations of such contemplated 115 Pac. 428; Harris v. St. Helens, 72 Or. highways appear on the recorded plat? It|377, 143 Pac. 941. will be kept in mind that Mr. Kinney testi-L [5-7] In order to establish a parol dedicafied two surveys of land in Gearhart Park tion, evidence must be adduced tending to were made west of Neacoxie creek. From substantiate a clear intention to devote some the discovery of white stakes driven in the particularly described land to a public use. ground in parallel lines 60 feet apart, it is Lewis v. Portland, 25 Or. 133, 35 Pac. 256, believed the first survey included land east of 22 L. R. A. 736, 42 Am. St. Rep. 772; Morse that stream, and that such stakes were un- v. Whitcomb, 54 Or. 412, 102 Pac. 788, 103 doubtedly intended originally to mark the Pac. 775, 135 Am. St. Rep. 832; Parrott v. boundaries of Summit avenue. The stake re- Stewart, 65 Or. 254, 132 Pac. 523; Jones v. ceived in evidence and brought up discloses Teller, 65 Or. 328, 133 Pac. 354. A consideraon two sides at right angle the letters, "Str,” tion of all the evidence tends to establish an and on the third side the letters and figures, intention on the part of Mr. Kinney to make "B137,” which number corresponds with a parol dedication, to the public, as contemthat of the block designated at that place on plated highways 60 feet in width, of the parts the printed plat and indicating the south- of Summit avenue and Seventh street that west corner of such block. The letters "Str" border upon block 23, as indicated upon the on both sides of the stake as indicated, desig- printed plat, though he subsequently intended nate Summit avenue on the west and Seventh that map should be superseded by the restreet on the south. It is fairly to be in- corded plat; but sales of land in Gearhart ferred that divisions of real property, as de- Park having been made by exhibiting to purlineated on the printed plat, were made to chasers a duplicate of the printed plat becorrespond with the lines of the first survey, fore the other map was recorded, such cir
venting him from asserting any survey con- Law Rev. 123. See, also, 2 Wigmore, Ev. S trary to that evidenced by the printed plat, 1232. No error was committed in receiving so far as block 23 might be affected thereby. in evidence duplicates of the printed plat.
 The plaintiff's counsel, without offer-  It is argued that an error was commiting any testimony to explain his failure or ted in receiving, over objection and exception, inability to produce the original plat of the testimony relating to white stakes found survey of Gearhart Park, from which map it driven in the ground along Summit avenue, is asserted the printed copies must have been at a distance of 60 feet from the west line made, was permitted, over objection and ex thereof, since it was not disclosed by whoin ception, to submit in evidence two of such these posts were set, nor that Mr. Waite's duplicates, and it is maintained that errors attention was called to them when he exwere thereby committed. The statute invok-amined block 23 with a view of purchasing it ed to sustain the legal principle insisted upon, for his wife. When the first survey of Gearas far as involved herein, reads:
hart Park was made is not manifest from an "There shall be no evidence of the contents of examination of the testimony. Mr. Kinney a writing, other than the writing itself, except and his wife acknowledged the deed which in the following cases: 1. When the original is in the possession of the party against whom the
they gave to Mrs. Waite about two years aftevidence is offered, and he withholds it under the er they purchased the real property. Prior circumstances mentioned in section 782. 2. to the delivery of that deed Mr. Waite had When the original cannot be produced by the party by whom the evidence is offered, in a
examined block 23, stepped the width of the reasonable time, with proper diligence, and its highways bordering that block and found absence is not owing to his neglect or default." them to be 60 feet, saw the white stakes simiL. 0. L. 8 712.
lar to the one received in evidence, and his The clause thus referred to, in the language attention was then attracted to these posts. quoted, is as follows:
Such facts do not bring the case within the “The original writing shall be produced and rule announced in Carlyle v. Sloan, 44 Or. proved except as provided in section 712. If the 357, 75 Pac. 217, and no error was committed writing be in the custody of the adverse party
as alleged. he must first have reasonable notice to produce it. If he then fail to do so, the contents of the  It is maintained that the proposed writing may be proved as in case of its loss; but dedication to the public of the highways, the the notice to produce it is not necessary where
width and existence of which are challenged the writing itself is a notice, or where it has been wrongfully obtained or withheld by the ad
herein, cannot be considered as open for a verse party.” Id. § 782.
time exceeding the statute of limitations ; In order to uphold the rule thus declared,
that such dedication was lost by nonuser, and reliance is placed upon the case of Jones v.
that an error was committed in awarding to Teller, 65 Or. 328, 133 Pac. 354, where it was
the plaintiff any relief beyond that conceded held that a blueprint, purporting to represent
by the answer. The sale of a lot bordering the locus in quo, and which had been received
upon a street that is indicated on a plat of in evidence, would not be considered for any
survey, amounts to an irrevocable offer by purpose, since no testimony had been offered
the dedicator, that so far as he is concerned, to prove that any effort had been made to
the proposed highway, unless legally vacated, produce the original. In that case the plain
shall forever remain open to the public. tiff, referring to the map so admitted in evi
 A formal acceptance of the donation dence, testified that his grantor had a blue is unnecessary, since an approval of the gift print something like that. The lack of such by municipal officers will be implied. Carter proper identification afforded a suflicient rea- v. Portland, 4 Or. 339; Meier v. Portland con. to warrant the exclusion of the blue | Cable Ry. Co., 16 Or. 500, 19 Pac. 610, 1 L. R. print.
A, 856; Hogue v. Albina, 20 Or. 182, 25 Pac. In the case at bar, however, a duplicate of 386, 10 L. R. A. 673. The grantees of the the printed plat was particularly identified as dedicator may extinguish the right of the being similar to that used by Mr. Crawford public in and to a street by an unlawful enin effecting a sale to Mrs. Waite of block 23, croachment thereon for a term equal to the and as between her and Mr. Kinney, the prin- period of the statute of limitations, which cipal and then owner of the premises, each purpresture raises an estoppel against the printed plat was an original. "It sometimes municipality on the ground of the negligence happens," says an author, “that there are a of its officers in failing to assert a right to number of duplicates of the same document, the easement. Schooling v. Harrisburg, 42 as in the case of placards, newspapers, etc. | Or. 494, 71 Pac. 605; Nodine v. Union, 42 In such case, to prove the contents any one Or. 613, 72 Pac. 582; Oliver v. Synhorst, 48 of the several copies is admissible." McKel. Or. 292, 86 Pac, 376, 7 L. R. A. (N. S.) 243; vey, Evidence (2d Ed.) § 272. “Any one of | Portland v. Inman-Poulsen Lumber Co., 66 duplicate instruments may be introduced in Or. 86, 133 Pac. $29, 46 L. R. A. (N. S.) 1211, evidence without accounting for any other. Ann. Cas. 1915B, 400. Neither Summit ave. In this connection, however, the term 'dupli- nue nor Seventh street has been improved or cate' signifies more than a mere copy; the encroached upon, except that Woodland Park instruments must be identical not only ver- | addition to Gearhart Park has been surveyed