11/08/1954 Meeting - Laserfiche WebLink

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0'-)"""'~ ~Oi e . -- - - - ~ - - - --- _~__ "__.h ____ .._~ - -- ---- -- -~ ---- _._- ---- --- !I -------~ - ----~--~----------------- ---- "--~-~---C='C".=-C=7~~.~7~---r'----~-=-:-c-- I. I :1 I Ii THUS, WHILE A TENANCY fOR YEARS MAY BE LIMITED BY DEED, THE LANDLORD-TENANT RELATION- II SHIP HAS AS ONE Of ITS CARDINAL fEATURES, .THE RETURN Of CONSIDERATION BY THE TENANT, THE " CI TV . Ii IN THIS INSTANCE. . ! If THE OREGON SUPREME COURT WERE TO ADOPT THIS INTERPRETATION, THE STATUTORY I NTER- -I 'I " Ii PRETATION AS TO THE PROVISO CLAUSE WOULD R&SULT IN THE CONCLUSION .THAT THE LEGISLATURE Ii INTENDED THE TERMS "ALIENATED" AND "C-ONVEYANCE tt IN THIS STATUTE TO APPLY TO TOTAL DIVEST- II MENTS Of THE COUNTY'S INTEREST IN LAND, AND NOT TO -LEASES, SINCE THE PROVISO IS THAT THE I' I "CONVEYANCE" BE WITHOUT CONSIDERATION. THE LEGISLATION COULD NOT HAVE INTENDED THE LEASE I' ': TO BE WITHOUT CONSIDERATION; SINCE IT WOULD THEN BE NO LEASE AT A~L. CONSEQUENTLY, THE ii " STATUTE DOES NOT fORBID A LEASING AGREEMENT fOR -VALUABLE CONSIDERATION. Ii ,I (A) IT IS THE OPINION Of THIS OffICE, THEREfORE, TH~T A 99 YEAR LEASE AT REASONABLE il . RENTAL IS NOT PROHIBITED BY THIS STATUTE BUT CAUTIONS THAT IT WOULD BE WISE TO II OBTAIN A DECLARATORY JUDGMENT Of THE RIGHTS Of THE PARTIES BEfORE EXTENSIVE II EXPENDITURES ARE MADE. I, <, e Ii 4. You MAY ALSO BE ADVISED THAT THE POSITION Of THE CITY AND COUNTY IN THIS MATTER i: MAY BE STRENGTHENED BY THE fACT THAT A BENEfiCIAL PUBLIC PURPOSE IS THE OBJECTIVE Of THE Ii PROPOSALS. JUDICIAL fAVORITISM fOR fURTHE~ING A PUBLIC PURPOSE IS COMMONPLACE. ILLUSTRA- T I VE Of T.H IS IS THE DICTUM Of THE NEW YORK COURT IN DISCUSSING A LEASE Of CITY LANDS IN THE " fACE Of A STATUTE PROHIBITING "ALIENATION": " " it , IT CANNOT BE ACCURATELY SAID ~HAT A LEASE Of THE PUBLIC PROPERTY SPECifiED I I: . . . I ~ IN SECTION 71 IS VOID, If IT NECESSARILY CARRIES OUT A PUBLIC PURPOSE AUTHORIZED I! IN ANY OTHER SECTION. , I: I: 6. You HAVE "ALSO INQ~IRED CONCERNING THE POSSIBLE RESTRICTIONS AS TO THE USE WHICH THE-COUNTY CAN MAKE Of THIS PROPERTY CONTAINED IN THE ORIGINAL DEED TO THE COURT fROM CHARNEL MULLIGAN AND WIfE. , ii 1 AN EXAMINATION Of THE DEED ON RECORD SHOWS THE fOLLOWING AS ~HE ONLY POSSIBLE LANGUAGE I I IN THE DEED WHICH ~OULD BE CONSTRUED AS A RESTRICiION: I I "WITNESSETH: THAT THE SAID PARTY Of THE fiRST PART ~OR AND Ii IN CONSIDERATION Of THE SUM Of ONE DOLLAR TO THEM IN HAND PAID, TH~ RECEIPT WHEREOf IS HEREBY ACKNOWLEDGED ." I. AND fOR THE fURTHER CONSIDERATION THAT EUGENE CITY; SEAT Of JUSTICE fOR SAID I! COUNTY Of LANE HAS BEEN LOCATED, PARTL.-Y THEREON, HAVE BARGAINED AND SOLD BY THESE I: PRESENTS... , THE OREGON SUPREME COURT HAS ADHERED TO THE RULE ESPOUSED BY THE GREAT WEIGHT Of Ii II AUTHORITY IN THIS COUNTRY THAT RESTRICTIVE COVENANTS IN DEEDS ARE TO BE STRICTLY CON- II STRUED. THE COURT HAS SAID: " Ii 'AND AN ESTATE UPON CONDITION ~ANNOT BE CREATED BY DEED, EXCEPT WHERE THE TERMS Ii Of THE GRANT WILL ADMIT Of NO OTHER REASONABLE INTERPRET~TION...OUR CONCLUSIONS ON THIS POINT ARE STRENGTHENED BY THE fACT THAT THE APPELLANTS ARE I NVOLl NG A I: TECHNICAL RULE Of THE COMMON LAW, WHICH RULE HAS NEVER BEEN fAVORED BY THE COURTS, I II Ii BU~ IS ALWAYS ~ONSTRUED STRICTLY. , I: RALEY V. UMATILLA COUNTY, 15 OR. 180, 181 . !I Ii . I: THE REASON FOR THIS RULE IS THAT THE COURTS ABHOR A fORFEITURE 'WHICH WOULD RESULT If A RESTRICTION WERE ALLOWED LIBERAL INTERPRETATION. : il SEE EXCELLENT ANALYSIS IN ~STATES AND CONDITIONS SUBSEQUENT AND ESTATES ON SPECIAL e II LIMITATION, BY KENNETH J. O'CONNEL, PROfESSOR Of LAW, UNIVERSITY Of OREGON, I: COLLEGE Of LAW, 18 OREGON LAW REVIEW 63 AT P. 76. II Ii ii Of GREAT IMPORTANCE ALSO IS THE fACT THAT THE MULLIGAN DEEDS WERE GRANTED fOR A ~ I: PUBLIC PURPOSE. THIS CIRCUMSTANCE HAS BEEN TAKEN BY THE OREGON SUPRSME COURT AS AN \i INDICATION THAT A fORfEITURE IS NOT INTENDED BY CONDITIONAL OR LIMITING WORDS I N THE DEED. CITY Of PORTLAND V. TERWILLIGER, 16 OR. 465. I' (A) , IT IS TH€ OPINION Of THIS OfFICE THAT THE WORDS QUOTED ABOVE fROM THE MULLIGAN I' I, i! DEEDS IS NON-RESTRICTIVE IN NATURE. I! I Ii (B) IT IS THE OPINION Of THIS OffiCE THAT CLAIMS ASSERTED ON THE BASIS Of THIS II LANGUAGE COULD BE SUCCESSfULLY DEfEATED SHOULD LITIGATION ARISE. tI I , I , : IT WAS MOVED BY M~. SIEGENTHALER, SECONDED BY MR. BOOTH, THA T THE RE PORT BE REfERRED TO' t THE SPECIAL COMMITTEE fOR CIVIC CENTER. MOTION CARRIED. I , , ( I o. e ~ -