Spokane v. Catholic Bishop , 33 Wash. 2d 496 ( 1949 )

I should now, as is my custom when I am satisfied with the result obtained by the majority, acquiesce silently in its opinion did I not believe that certain holdings of the majority relative to the introduction of evidence violate rules of evidence that have stood the test of time since members of the bench and bar began to be conscious of evidence as a distinct field of law.

It is my contention that the blueprints, exhibits Nos. 5 and 6, were not admissible in evidence to show a dedication by former owners of the property, because they were not the best evidence and were not properly identified.

Proof of a fact demands the production of the best evidence obtainable. If a legal contest involves the contents of a written instrument, that instrument must be produced with evidence proving its execution. If the instrument cannot be produced, secondary evidence may sometimes be admitted.

The rule may be stated as follows: The best evidence of the contents of a written instrument is the instrument itself, which must be produced, or a satisfactory cause shown for its nonproduction. Its production will be excused only in case of necessity, as where it is shown to be lost, destroyed, stolen, beyond the jurisdiction of the court, or in the hands of the opposite party who fails to produce it on notice. In the absence of such proof, neither oral evidence nor copies of the writing may be received. In either event, there must be proof of the execution of the original writing and its delivery, when delivery is necessary.

"Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly accounted for. The contents of a written instrument may not, as a general rule, be proved by parol, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever." 20 Am.Jur. 366, Evidence, § 406.

"Where a party seeks to introduce secondary evidence of the contents of documents, and as a foundation for the introduction of such evidence relies on the fact that the original writings have been lost or destroyed or are inaccessible to him, see supra §§ 823-831, he must first establish this fact. The same rule applies where it is sought to introduce secondary evidence of the contents of public or corporate records." 32 C.J.S. 766, Evidence, § 837.

The supreme court of the United States in United States v.Boyd, 46 U.S. 29, 12 L.Ed. 36, held that secondary proof of the contents of a letter of appointment should not have been received without first accounting for the nonproduction of the original.

The case of United States v. Castro, 65 U.S. 346,16 L.Ed. 659, had to do with the claimed title to eleven leagues of land in California under a Mexican grant. A paper purporting to be the original grant was deposited in the government archives of the United States more than three years after its date and two years after the cession of the territory. It was not deposited by the grantee, Castro, but by one McKenzie, whose representatives claimed a portion of the land under a conveyance from Castro. The grant was signed by Pio Pico, then governor of California, and Jose Matias Moreno, secretary pro tem. Their handwriting was proved by a single witness. However, no testimony was offered to show when or where the paper was executed; nor was there any testimony to show who had custody of the grant until it was deposited in the public archives. Nor was there any reason given for keeping it out of the public office for so long a time; nor testimony as to how McKenzie obtained possession of it, except by the deed from Castro which he produced at the same time. The supreme court said in passing:

"In order to maintain a title by secondary evidence, the claimant must show to the satisfaction of the court: 1st, that the grant was obtained and made in the manner the law required, at some former time, and recorded in the proper public office; 2d, that the papers in that office, or some of them, have been lost or destroyed; and, 3dly, he must support this proof by showing, that within a reasonable time after the grant was made, there was a judicial survey of the land, and actual possession by him, by acts of ownership exercised over it. . . .

"We repeat again these rules of evidence, because it would seem from the case before us that the board of land commissioners and the Circuit Court regard written documentary evidence, produced by a claimant from a private receptacle, and proved by oral testimony, as of equal authenticity and entitled to equal respect with the public and recorded documents found in the public archives. But such a rule of evidence is altogether inadmissible. It would make the title to lands depend upon oral testimony, and consequently render them insecure and unstable, and expose the public to constant imposition and fraud. Independently, therefore, of the strong presumptions against the authenticity of the paper produced as a grant, it cannot upon principles of law be maintained, even if the testimony produced by the claimant was worthy of belief."

In Dwyer v. Dunbar, 72 U.S. 318, 18 L.Ed. 489, it appears that Dunbar brought suit against Dwyer on certain notes given by Dwyer. The defendant offered a copy of a letter which he claimed showed a compromise of the indebtedness. The letter itself was not produced, and there was no proof given of its loss. The court held that the evidence was entirely secondary in character, and that the trial court was correct in refusing its admission.

In the case of Marsh v. Wade, 1 Wn. 538, 20 P. 578, this court said:

"It may be stated in passing, also, that a cardinal principle of evidence, unchanged and unchanging, is that parol, contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument; and that when the terms or contents of a written instrument are the subject of inquiry, the instrument itself, if in existence and capable of being produced, is the only proper evidence. This is elementary."

The trial court in Rauh v. Scholl, 12 Wn. 135, 40 P. 726, permitted a paper to be given in evidence which purported to be a copy of an assignment of lease. The signatures to the copy were typewritten, and the signature of the notary before whom the acknowledgment of the original was taken was not attached to the copy until the same was offered in evidence upon the trial. In announcing its rule this court said:

"But, in any view of the case, this purported copy was wholly inadmissible under the circumstances attending its reception in evidence, because no foundation had been laid; no notice to produce the original had been given. To lay a foundation for the introduction of secondary evidence of the contents of a writing, the party offering the same must show that he has done all in his power to produce the original."

At the trial in McGill v. Fuller Co., 45 Wn. 615,88 P. 1038, the court excluded secondary evidence of the contents of the letter which had been received in evidence on a trial of an attachment suit. The only foundation laid for the admission of the evidence was an examination of the files in that action. The court said: "This showing was wholly inadequate, and there was no error in the court's ruling."

In Bond v. Werley, 175 Wn. 659, 28 P.2d 318, this court approved the action of the trial court in rejecting copies of notes because they were merely secondary evidence, and there was no satisfactory explanation of the failure to produce the originals.

The statement of the rule as announced in Marsh v. Wade,supra, was approved in Smith v. Johnson, 2 Wn.2d 351,98 P.2d 312.

The proof offered by respondent in this case was to the effect that blueprints are not originals, but are copies made by a photographic process. Photographs of documents are not admissible unless there is proof that (1) there were in fact executed original documents; (2) the original documents were lost, stolen, or otherwise unobtainable; (3) they are accurate photographs or copies of the originals. They may not be admitted when they are not accompanied by proof of their authenticity.

United States v. Braden, 92 F.2d 682, is in point. In that case, error was assigned upon the action of the trial court in excluding from consideration by the jury certain exhibits numbered 1 and 2. Those exhibits purported to be photostatic copies of the applications of the veteran for the insurance policies issued to him by two insurance companies. Their appearance indicated that the original applications were signed by the veteran and contained answers to certain questions which the opposing party regarded as relevant to the issues involved. No excuse was given for failure to introduce the original applications, and there was no evidence that the purported copies were really copies thereof. The circuit court held that the trial court did not commit error in excluding the proposed exhibits.

There was no evidence to show that Mr. and Mrs. Heath, who owned the property, signed the alleged written document which purported to dedicate the property in question to the public. There is a complete lack of evidence to prove delivery of the original writing. The exhibits, Nos. 5 and 6, were placed at random somewhere in the city engineer's office. There are no filing marks on them to indicate in any way that they were considered as official documents. Let us assume, however, for argument's sake, that the Heaths did dedicate this piece of ground; there is no evidence in the record which indicates that the authorities of the city of Spokane were ever apprised of the dedication, or ever accepted it.

"The authority to open, repair, and improve streets . . . was conferred upon the city of Seattle by its charter, and, as the city council was the only body by which the authority could be exercised, it follows that it was empowered to accept dedications of streets on behalf of the public." Seattle v. Hill, 23 Wn. 92,62 P. 446.

"A dedication at common law, like a contract, consists of an offer and acceptance; and subject to some exceptions considered, below, the general rule is well settled that a dedication is not binding and conclusive on either party until acceptance, and, of course, this rule applies to the grantee of the party offering to make the dedication. A dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burdens nor confer any rights. Until acceptance, the public acquires no rights, and is subject to no duties by reason of the dedication, and the rule has been applied in cases where it was sought to charge the public with responsibility for the care and maintenance of streets and highways dedicated to public use. Obviously, the owners of property cannot for their own benefit or convenience impose a street or highway on a municipality against its will and compel it to improve the street or highway or keep it in repair. In applying these rules, there is no distinction between a dedication by an individual and a muncipality." 26 C.J.S. 93, Dedication, § 34 a.

"A dedication of land to the use of the public, whether express or implied, may be revoked at any time before it has been accepted. [Citing case.] It has also been held, and upon sound ground, that a conveyance of an unaccepted street or highway revokes the dedication. [Citing cases.] It may also be revoked by applying the highway to any permanent use inconsistent with the purpose of the dedication." Smith v. King County, 80 Wn. 273,141 P. 695.

In any event, there was not a legal dedication proven. The city did not prove that Mr. and Mrs. Heath signed the alleged dedication agreement, and there was no acceptance on the part of the city, or move by the city to accept the property, which demonstrates that there was never any thought in the minds of the members of the city government that this piece of land had been dedicated to public use. There being no proper dedication of this street, the city's claim fails entirely.

There was insufficient evidence to prove an easement by prescription.

The majority opinion seems to indicate that a court of equity will decide a case of this nature in favor of the party that will suffer the greater injury by an adverse decision. In so doing, they call attention to the cost of the land. I cannot agree with that statement. A man's necessities never ripen into a right.