RealVest Corp. v. Lane County

• Decision Date: 10 November 2004
• Citation: 100 P.3d 1109,196 Or. App. 109
• Parties: REALVEST CORPORATION, a Washington corporation; Property Management Services, Inc., a Washington corporation; Village Inn Springfield, LLC, an Oregon limited liability company; and Village Inn Apartments, LLC, an Oregon limited liability company, Appellants-Cross-Respondents, v. LANE COUNTY, Oregon, a political subdivision of the State of Oregon, Respondent-Cross-Appellant, and John Sooy and Mary Sooy, husband and wife, Intervenors-Respondents-Cross-Appellants.
• Court: Oregon Court of Appeals

100 P.3d 1109

196 Or. App. 109

REALVEST CORPORATION, a Washington corporation; Property Management Services, Inc., a Washington corporation; Village Inn Springfield, LLC, an Oregon limited liability company; and Village Inn Apartments, LLC, an Oregon limited liability company, Appellants-Cross-Respondents, v. LANE COUNTY, Oregon, a political subdivision of the State of Oregon, Respondent-Cross-Appellant, and John Sooy and Mary Sooy, husband and wife, Intervenors-Respondents-Cross-Appellants.

16-01-13668; A120455.

Court of Appeals of Oregon.

Argued and Submitted April 6, 2004.

Decided November 10, 2004.

Wm. Randolph Turnbow argued the cause for appellants-cross-respondents. With him on the briefs was Hershner, Hunter, Andrews, Neill & Smith, LLP.

Marc H. Kardell argued the cause for respondent-cross-appellant. Joining him on the briefs were Connie L. Speck, Rohn M. Roberts, Eugene, and Arnold, Gallagher, Saydack, Percell, Roberts & Potter, P.C.

Rohn M. Roberts, Eugene, argued the cause for intervenors-respondents-cross-appellants.

Before EDMONDS, Presiding Judge, and ARMSTRONG and SCHUMAN, Judges.

EDMONDS, P.J.

Plaintiffs appeal and defendants, Lane County and its lessees, cross-appeal from the trial court's judgment in this declaratory judgment proceeding. ORS 28.010-ORS 28.160. The trial court rendered a judgment for defendants, declaring that a deed restriction is not enforceable against the county's property. Also, the trial court held that plaintiffs' use of a driveway across the county's property was subject to an implied dedication for public use, and it therefore refused to enjoin plaintiffs' existing use. We review de novo, ORS 19.415(3) (2001).¹ We affirm on both appeal and cross-appeal.

The dispute in this case involves land that is adjacent to the intersection of Marcola Road and Mohawk Boulevard, which is now part of the urban area of Lane County. For the purposes of this opinion, we will refer to the land in dispute as Tax Lot 500. If the intersection of the two streets is understood as forming quadrants, the county's land lies in the southeastern quadrant in its most northwesterly portion. Plaintiffs' land adjoins the county's land to the south and the east. The found in the Appendix map, taken from an exhibit in the record and enhanced with identifying markers, illustrates the parcels at issue.

In 1946, Morris and the Chases, the joint owners of Tax Lot 500 and the abutting land to the south and east, sold to Lane County: "All that portion of an 80 foot right-of-way" located at the northwest corner of the Chases' property. We will refer to that land as the "1946 right of way." In 1951, the Chases, who had previously acquired Morris's interest, sold property to the Hendersons on both sides of the 1946 right of way, excepting what was sold from the part of Tax Lot 500 that had been sold previously to the county. That meant that the right of way intersected Henderson's property, roughly in the middle of the northwest portion of it. For some years thereafter, the Hendersons resided on the property that they had purchased from Chase.²

In 1952, an event crucial to the resolution of this case occurred. The Hendersons conveyed by deed to Lane County a portion of Tax Lot 500 that described property on both sides of the 1946 right of way. After describing the land conveyed, the deed provides:

"Except that tract of land conveyed to Lane County for road purposes, described in Volume 32, Page 601, Lane County, Oregon, Deed Records, and excepting right-of-way of Mohawk County Road.

"Land conveyed by this deed is .9 Acres, which is hereby made subject to the restriction that no building shall ever be erected thereon."

We will refer to that conveyance in this opinion as the "1952 conveyance." According to the record, in later years, when Mr. Henderson discussed the purpose of the restriction in the deed to the county, he explained that, because he lived on the property, "he didn't want a building next to him."³

As the years passed, the surrounding area became urban in nature rather than rural. Plaintiffs or their predecessors in interest constructed a 110-unit apartment complex, a 66-room motel, and a restaurant on the property that is immediately adjacent to the property owned by the county on Tax Lots 701 and 702. In 1971, the county relocated Marcola Road. By 1972, additional motel units were added and apartments built on property to the east and southeast on Tax Lot 700.⁴ In 1972, a second event crucial to the resolution of this case occurred. The Lane County Board of Commissioners vacated the 1946 right of way. It also vacated a portion of the roadway that the county had constructed and that was on a portion of the land conveyed to the county by the Hendersons in 1952 because those areas were no longer being used as part of the existing roadway.

In November 2000, and after Mr. Henderson died, his wife and his heirs sold all the remaining land they owned in Tax Lot 500 to RealVest, one of the plaintiffs. Presently, the property to the north and west of Tax Lot 500 across the roadways includes a convenience store, pizza parlor, and a neighborhood market place with a large grocery store, a fast food restaurant, and several smaller stores. All of the property immediately surrounding Tax Lot 500 is zoned commercial. Mohawk Boulevard, also known as 19th Street, is a two-way, four-lane arterial with a center turn lane, curbs, gutters, and sidewalks. Likewise, Marcola Road is now a two-way, two-lane arterial with a center turn lane, curbs, gutters, and sidewalks.

Those facts frame the present dispute between the parties. In their complaint, plaintiffs seek a declaration that all of the county's property is subject to the restriction against building contained in the 1952 conveyance and that, as successors in interest to Hendersons, they are entitled to enforce the restriction against the county. With knowledge of a dispute over the enforcement of the building restriction, Sooys entered into a lease with the county for the county's remaining property in Tax Lot 500. Sooys intervened in the trial court proceedings, and they participate in this appeal as respondents and cross-appellants. The county and Sooys contend that the restriction is no longer enforceable. In addition, the county seeks to enjoin plaintiffs from trespassing on their property by the use of the driveway that leads from plaintiffs' apartment across the county's property to Marcola Road.

The trial court made findings of facts and reached the following conclusions of law:

"1. The effect of the change upon the restricted Lane County property is such as to clearly neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenant.

"2. The restrictive covenant is of no substantial value to Plaintiffs' property.

"3. Enforcement of the restrictive covenant would be inequitable, unjust and a useless burden upon Lane County and Lessors.

"4. Plaintiffs are presently using portions of the Lane County property for a driveway without Lane County or Lessor's explicit authorization and consent. However, since the evidence establishes an implied dedication of the driveway to public use, Plaintiffs should not be enjoined from continuing use of the subject driveway without the County formally vacating the implied easement created by that public use."

The trial court denied "as moot" plaintiffs' request for a judgment declaring that the disputed county property is subject to a deed restriction enforceable by plaintiffs. It declared that the restriction in the 1952 deed was not enforceable against the property that Lane County obtained in that deed. It also declared that judgment be entered in favor of plaintiffs and against defendants on defendants' trespass claim.

On appeal, plaintiffs make two assignments of error: (1) "[t]he trial court erred in holding that the deed restriction no longer provides any value to RealVest Property"; and (2) "[t]he trial court erred in failing to rule on Plaintiffs' claim for relief and to hold that the deed restriction encumbers all of [Tax Lot] 500, including the '80 foot right of way.'" We consider both assignments together because they are interrelated. The starting point in our analysis concerns the ownership of the various portions of Tax Lot 500. Two questions need to be answered before addressing the present import of the 1952, deed restriction on building: What interest in land was conveyed to Lane County in 1946 and 1952 and who owns the land vacated by Lane County in 1972?

Our goal in interpreting a writing, including a deed conveying property, is to determine the parties' intent. See Tipperman v. Tsiatsos, 327 Or. 539, 544-45, 964 P.2d 1015 (1998) (construing an instrument that created an interest in land); Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019 (1997) (construing a contract). We do that by looking first to the language of the instrument itself and considering its text in the context of the document as a whole. If the text's meaning is unambiguous, the analysis ends, and we interpret the provision's meaning as a matter of law. Yogman, 325 Or. at 361, 937 P.2d 1019. If a provision is ambiguous — that is, if it has no definite meaning or is capable of more than one reasonable interpretation — we will examine relevant surrounding circumstances or extrinsic evidence of the contracting parties' intent. Tipperman, 327 Or. at 544-45, 964 P.2d 1015; Yogman, 325 Or. at 363-64, 937 P.2d 1019. Finally, if an ambiguity remains, we may resolve the contract's meaning by resort to applicable maxims of construction. Yogman, 325 Or. at 364-65, 937 P.2d 1019.

With the above principles in mind, we turn to the terms of the 1946 deed. For the listed consideration of one dollar, the 1946 warranty deed from Morris and the Chases "does hereby grant, bargain, sell and convey" to Lane County "all the following real property * * * described as follows, to wit: All that...