Grubissich

(after stating the facts- as above). The appellant relies upon'the'alleged copy of the instrument of date March 28, 1870, and contends that at the date thereof the property in controversy belonged to Ben Holladay & Co., and that, although it is not described in the copy of that instrument, it was intended to be included therein and conveyed thereby. There is no legal proof, however, that the alleged instrument was ever executed, or that it was ever seen or was in existence or was lost. The evidence offered to prove that there was such an instrument is the minutes of a meeting of the board of directors of the Oregon Central Railroad Company of March 28, 1870, which contain a record of the agreement of cancellation of the construction contract of Ben Holladay & Co., and what purports to be a copy of the instrument which is" relied upon, together with certain admissions which are alleged to have been made by Ben Holloday in the answer in the suit of Nightengale & Elliott v. Oregon Central Railroad Company and the Oregon & California Railroad Company, and in an affidavit made by Ben Holladay and filed in that suit, which' is referred to in the record as Exhibit 52. We agree with the…

(dissenting). On the 24th of April, 1911, the complainant filed in the court below its bill of complaint, which, after the trial of the cause, was dismissed. In the bill it was alleged, among other things, that on the 13th of the preceding March, the defendant to the bill commenced an action at law in the same court against the complainant as defendant to recover the possession of the north half of the northeast quarter of section 32, and the east half of the southeast quarter and lots 5 and 6 of section 29 in township 1 south, range 2 east, of the Willamette meridian, in Clackamas county, Or., with alleged damages, rents, issues, and profits, to restrain the prosecution of which law action the bill was brought, as also to establish by the decree of the court title to the property in the complainant and to enjoin the defendant to the bill from ever asserting any title thereto.

Tiie facts out of which the litigation grows occurred more than dO years ago; the bill alleging that in 1867 an Oregon corporation called Oregon Central Railroad Company, having its principal office at Salem in that state, for the purpose of building and operating a railroad from Portland southward to the…