dissenting.
I am unable to agree with the opinion of the majority.
*175The plaintiff, in her petition, seeks to quiet title to real property described in her complaint, but the only portion in issue is that set forth in the deed from defendants to plaintiff, dated November 30,1944. This deed, in so far as is material to this case, reads as follows:
“* * * thence south in the center of said road 1161.40 feet to a point 20.00 feet north of the southerly line of Kiel and Beckman County Road # 313; thence parallel with the southerly line of said road (Kiel and Beckman Road) South 65 degrees, 16' 30" E. 956.4 feet more or less, to the center of the H. Longcoy County Road # 256, thence northerly in said road to the place of beginning.”
That the problem may be made more clear, I am setting forth a rough drawing of the land in dispute:
It must be kept in mind at all times that this is not a suit to reform the deed to comply with the former agreement of the parties, for there are no allegations in the complaint sufficient to support such a suit. De Tweede v. Barnett Estate, 160 Or 406, 85 P2d 361; Meier v. Kelly, 20 Or 86, 25 P 73. As in the case of Meier v. Kelly, supra, p. 94, “* * * The complaint in this case contains no allegation of a mistake in the mortgage [here deed], but is drawn up on the theory that there is no mistake, but an uncertain description.”
That this is true is clearly established by the fact that the plaintiff, in another original suit, alleged that the land here in question was not conveyed as agreed and sought to recover damages for breach of the contract. She later abandoned this theory by an amended complaint seeldng to have the deed reformed, but this suit was never tried. This being true, plaintiff’s deed being unambiguous upon its face, unless
*176
a latent ambiguity arises, we cannot change or vary the description actually contained in the deed, although it may appear that it is not the description intended to be inserted therein.
“* * # Where the terms, used in the description contained in a deed or mortgage are clear and intelligible, the court will put a construction on the terms, and parol evidence is not admissible to control the legal effect of such description. * * * but when the description is uncertain and ambiguous, parol evidence will be admissible to fit the description to the thing described, but not to add to or change the words of the description.” Meier v. Kelly, 20 Or 86, 93, supra.
It must also be kept in mind that parol evidence may be used to explain an ambiguity, but it is never proper for such evidence to be used to create one. In my opinion, this is exactly what the majority’s opinion does.
*177The oral evidence offered by the plaintiff is to the effect that Linwood Avenne County Road No. 1648 was sometimes called by people living in that vicinity Long-coy Road. From this premise they argne that the parties intended as a monument in the deed Linwood Avenue County Road No. 1648. Thus, they change the wording of the deed and create an ambiguity where none, in fact, exists. In other words, they create a boundary line not mentioned in the deed.
The undisputed facts in this case show that there had been designated and existing at the time the conveyance was executed H. Longcoy Road, County Road No. 1256, that this road was open and used for travel from the north to where it intersected Linwood Avenue County Road 1648, that sometime prior to 1939 an extension of Longcoy Road, County Road No. 1256, was surveyed and platted in a southerly direction intersecting the Kiel-Beckman Road. Though this extension of the road was never opened, and the right of way abandoned in 1939, it was shown upon the county plats as H. Longcoy County Road No. 1256, and the measurement of 956.4 comes exactly to the center line of the survey of this abandoned right of way.
I place no significance upon the fact that the deed describes H. Longcoy County Road as No. 256 instead of No. 1256, as it seems clear that this was merely a typographical error.
The only possible defect in the conveyance arises from the fact that at the time of the conveyance there was no extension of H. Longcoy Road 1256 then in existence. From this it seems they argue that there must be an ambiguity because there is another road in the vicinity, not Longcoy Road but sometimes called by that name, and, therefore, extrinsic evidence is proper to gain the true intent of the grantor. This may be *178possible where the description used in the deed describes equally well both monuments, but not otherwise. Thompson on Real Property, Perm Ed, Vol 6, p 455, § 3281.
“A latent ambiguity occurs when the deed or other instrument appears sufficiently certain, free from ambiguity, but the ambiguity is produced by something extrinsic, or some collateral matter out of the instrument. Where a description is apparently clear and complete, yet when it is applied to the land it appears that the words are applicable to different things, and there is nothing in the deed to show which is meant, * * 6 Thompson on Real Property 460, § 3283.
In Holcomb v. Mooney, 13 Or 503, 507, 11 P 274, it is stated:
“* * * ‘A latent ambiguity is where you show that words apply equally to two different things or subject-matters.’ ”
If these definitions of a latent ambiguity are correct, the fallacy of the majority is at once apparent. First, the plats offered in evidence show the center line of an unopened road exactly 956.4 feet east of the south corner boundary line described thereon as H. Longcoy Road 1256; and, secondly, it must be admitted that no H. Longcoy Road ever officially existed east of the 956.4 feet marking the measured terminus of the description in the deed.
The majority would then, it seems to me, create by oral testimony an ambiguity which does not appear from the language used in the deed, or when the description is applied to the county plat. In other words, they say the grantor did not intend to describe H. Longcoy County Road 1256 as platted and abandoned, but intended to describe a road that some people call Longcoy Road, though the road referred to was platted *179and named thereon as Linwood Avenne County Road 1648.
It seems to me there is no ambiguity, either latent or patent, in the conveyance.
The statute set forth and relied upon by the majority, ORS 93.310(2), which reads, “When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles or surfaces, the boundaries or monuments are paramount” cannot be used to create an ambiguity.
This is merely a rule of construction to dissolve ambiguities, and is applicable when there is no question as to the monument intended. It is based upon the premise that a monument will afford greater certainty as to the boundary line than will be the measured distance which is subject to man-made error. 11 CJS 607, Boundaries § 50.
Also, before we may consider that there is a latent ambiguity because the grantor could have intended to include Linwood Avenue County Road No. 1648 as the boundary, since it was sometimes called Longcoy Road, we must first dispose of another rule of interpretation.
“# * * While the rule of law is as heretofore stated, that actual location of the lines and monuments on the ground will control over courses and distances, we think that where it is claimed that such lines and monuments do not agree with the courses and distances, the evidence of their actual location should be so clear and satisfactory as to establish that fact to the entire satisfaction of the court and to place beyond question the actual location of the line or monument.”
King et al. v. Brigham, et al., 19 Or 560, 569, 25 P 150.
In this case, assuming the premise of the majority that we have an uncertainty as to the monument in*180tended, we do not have a conflict between an ascertained monument and a stated distance, but only an uncertainty as to the monument intended.
Under such circumstances, that which is certain should control; that is, where there is a conflict as to the monument intended, and one corresponds with the courses and distances stated and the other does not, the one that corresponds shall prevail. Patton on Titles, Yol 1, § 150.
This is the holding of the following cases which appear to be all that have reached the courts dealing with this particular matter. In Post v. Wilkes-Barre Connecting R. R. Co., 286 Pa 273, 133 A 378, the deed described a call to the main channel of a river which in fact had two channels. The court, in deciding this case, held that the conveyance was intended to convey to the first channel, since this description would coincide with the quantity stated to be involved and the course and distance given in the deed, despite the fact that it was established that the second channel was in fact the main channel. The holding, in effect, was that course and distance may be used as guides to find natural objects or determine in case of doubt which object was intended.
In Gilbert v. Parrott, 168 Ky 599, 182 SW 859, the court followed the above rule, stating that it would not allow parol evidence to vary a beginning point when it could be determined by the use of distances, since the position of the monument was ambiguous. In Davenport v. Bass, 137 Tex 248, 256, 153 SW2d 471, where there was an ambiguity regarding monuments, the court said:
“* * * we think it a safe rule that if there be calls for two or more objects, as, for instance, different roads, and it becomes necessary to adopt *181one or another of said calls, that one will he adopted which most nearly conforms to the courses and distances * *
In Zeibold v. Foster, 118 Mo 349, 355, 24 SW 155, the court there said:
“* * * we have two fixed artificial monuments, and both cannot control * * *. One is of no higher value as a monument than the other.”
The court thereupon decided that the one which coincided with the course and distance should prevail. To the same effect see, also, Hostetter v. Los Angeles Terminal R. Co., 108 Cal 38, 41 P 330; 11 CJS 603, Boundaries § 50; 6 Thompson on Real Property 532, § 3333.
It appears from the majority opinion that this rule of law just discussed is brushed aside, because they are of the opinion that at the time the deed was executed the extension of H. Longcoy Road No. 1256 had been abandoned by the county and there was no visible road in the vicinity other than Linwood Avenue County Road No. 1648, sometimes called Longcoy Road.
As I construe ORS 93.310(2), ascertained boundaries are of equal stature with permanent and visible monuments.
The undisputed evidence in this case is that the boundaries of the extended portion of H. Longcoy County Road 1256 were surveyed and platted. This, it seems to me, is an ascertained boundary of a road and, having once been ascertained, the mere fact of vacation should not affect its establishment as a call to an ascertained point.
To reach the result of the majority, it seems to me we are totally ignoring the substantive rule of law that parol evidence may not be used to vary the terms of a written-instrument.
*182In Holcomb v. Mooney, 13 Or 503, 506, supra, we said:
“* * * And if there is any proposition of law well established upon principle and authority, it is, when the description in a deed designates a piece of land as that conveyed, the description cannot be departed from by parol evidence of intent.”
In Meier v. Kelly, 20 Or 86, 93, supra, we said:
“Where the terms used in the description contained in a deed or mortgage are clear and intelligible, the court will put a construction on the terms, * * *; but when the description is uncertain and ambiguous, parol evidence will be admissible to fit the description to the thing described, but not to add to or change the words of the description.” (Italics supplied)
Cited with approval in Harvey v. Campbell, 107 Or 373, 209 P 107, 214 P 348.
Again, in Hyland v. Oregon Agricultural Co., 111 Or 212, 216, 225 P 728, we approved this statement:
“‘* * * The test of the admissibility of evidence dehors the deed is involved in the question whether it tends to so explain some descriptive word or expression contained in it, as to show that such phraseology, otherwise of doubtful import, contains in itself, with such explanation an identification of the land conveyed.’ The authors then say: ‘The rule is founded on the maxim “Id certum est, quod cerium reddi potest” ’ * * *”
We also in this case on p. 217 said:
“It is a substantive rule of law that as between the original parties to a contract and their privies, in the absence of fraud, mistake in fact or illegality in the subject matter of the contract, where the parties have entered into a contract which is complete in itself and which has been reduced to writing, it is ‘conclusively presumed that the whole en*183gagement of the parties, and the extent and manner of their undertaking, was reduced to writing’; and that parol evidence, that is, evidence extrinsic to the writing itself, is inadmissible for the purpose of adding to, subtracting from, altering, varying or contradicting the terms of the written contract or to control its legal operation or effect, and that all oral negotiations or stipulations between the parties preceding or accompanying the execution of the written contract are regarded as merged in it: 1 Grreenl. Ev. (16 ed.), §275; Looney v. Rankin, 15 Or 617 (16 Pac. 660); Tallmadge v. Hooper, 37 Or 503 (61 Pac 349, 1127); Sutherlin v. Bloomer, 50 Or 398 (93 Pac. 135); Gill v. Columbia Contract Co., 70 Or. 278 (141 Pac. 163); Interior Warehouse Co. v. Dunn, 80 Or. 528 (157 Pac. 806); Wallace v. Oregon Engineering Co., 90 Or. 31 (174 Pac. 156, 175 Pac. 445).”
Many more cases of similar import could be cited, but these amply support the proposition that parol evidence could only be used to show that there had been at one time an established boundary known as H. Longcoy County Road No. 1256, and cannot be used to show that the parties intended some other boundary line.
For the above reasons I must dissent.