Spooner v. Polk County

• Decision Date: 25 November 1974
• Citation: 19 Or.App. 557,528 P.2d 597
• Parties: Harold L. SPOONER and Marvis L. Spooner, husband and wife, Appellants, v. POLK COUNTY, a political subdivision of the State of Oregon, Respondent.
• Court: Oregon Court of Appeals

Page 597

528 P.2d 597

19 Or.App. 557

Harold L. SPOONER and Marvis L. Spooner, husband and wife, Appellants, v. POLK COUNTY, a political subdivision of the State of Oregon Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 21, 1974.

Decided Nov. 25, 1974.

Ralph C. Spooner, Salem, argued the cause for appellants. With him on the briefs was Bruce W. Williams, P.C., Salem.

Dwight L. Ferris, Deputy Dist. Atty., Dallas, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Plaintiffs, property owners in Polk County, initiated this action contending defendant, Polk County, was in breach of two contractual obligations. The county counterclaimed, contending plaintiffs were in breach of two contractual obligations. The trial court, sitting without a jury, ruled in plaintiffs' favor on one of their claims and in the county's favor on the other. The court also ruled against the county on both of its counterclaims. Plaintiffs appeal on the claim resolved against them.

In 1966 the plaintiffs and county officials executed a written lease agreement whereby the county was to have the use of 1.322 acres 'more or less' of plaintiffs' property for construction and operation of a radio communications tower. The lease was for 99 years. The agreement also granted the county a 20-foot-wide, 5,819-foot-long easement over plaintiffs' property to the tower site. In return the county was to pay plaintiffs $75 per year, and perform certain construction and maintenance obligations relating to a road over the easement.

This case concerns these road obligations. Approximately the first 1,900 feet of the county's easement followed plaintiffs' gravel driveway between their home and a public road. The county was to maintain this portion and, if certain conditions were fulfilled, to pave it. The balance of the easement road was to be constructed and maintained by the county as a gravel road.

Apparently there have been frequent disagreements between the parties concerning their rights and duties under this 1966 agreement. This action is the most recent. Plaintiffs contend the county is in breach of obligations: (1) to 'maintain' a gravel road over the entire 5,819-foot easement; and (2) to 'pave' the first 1,900-foot-long portion of it. The county contends plaintiffs have breached an implied covenant of quiet enjoyment and actually or constructively evicted the county from the leased property.

The trial court concluded that the county was in breach of its obligation to 'maintain' a gravel road over the easement, but that there was no evidence of actual damages. The court thus awarded nominal damages. The court further concluded that the county had not proven facts necessary to support either of its counterclaims. There is evidence to support these findings and no appeal is taken from them.

The trial court also concluded that the county was not in breach of a duty to pave the first 1,900 feet of the easement road. Plaintiffs argue this finding is erroneous. Resolution of this claim requires interpretation and construction of the parties' agreement.

The relevant language of the agreement provides:

'* * *

'The TENANT (the county) shall grade and surface with crushed rock, to a minimum width of eight feet, the access road herein described and granted, and shall maintain such surfaced road for its use and for the personal use of the LESSORS (plaintiffs) and their heirs and assigns and successors in interest. The access road shall be maintained by the TENANT with a 3/4 inch crushed rock surface and maintained in such a manner as to be smooth and passable at all times for the passage of passenger cars. However, in the event the LESSOR desires to use other equipment on the roadway he reserves the right to strengthen or alter the roadway to accommodate such other equipment and to insure that said alterations do not leave the road in such condition that passenger cars cannot use it.

'The portion of access road from road 741 to the barn area shall be maintained to its present width.

'In the event road 741 is improved with asphalt, concrete or other paving in the near future, the access road from road 741 to the existing gate some 200 feet from the barn shall be similarly surfaced and no further grading required. The TENANT within the period prior to September, 1970, shall in any event so pave the above described section provided the LESSORS pave the court yard immediately in front of the existing residence, including curbs, catch basins and drain lines.'

The condition precedent to the county's duty to pave the driveway portion of the easement road was fulfilled when plaintiffs paved 'the court yard immediately in front of the existing residence.' In August 1970 county officials and a paving contractor went to plaintiffs' property. A dispute arose about how wide the paving should be. Plaintiffs contended the county should pave the driveway to its full existing width. They relied on the following provision in the agreement: 'The portion of the access road from road 741 to the barn area shall be maintained to its present width.' There was evidence that the 'present width' when the agreement was executed and the existing width in August 1970 varied between 17 and 20 feet. The county officials maintained they only had to place 8 feet of paving on the driveway. They relied on the following provision of the agreement: 'The TENANT shall grade and surface with crushed rock, to a minimum width of eight feet, the access road herein described and granted * * *.' In other words, the county believed its obligation was to pave an 8-foot width, while plaintiffs believed its obligation was to pave a 17-to 20-foot width.

The parties discussed settling this dispute at the time. The county officials offered to pave a 12-foot width. Plaintiffs insisted on nothing less than paving the entire existing width. County officials refused to do so. No paving of any width was placed on the driveway. This litigation followed.

Ascertaining and effectuating the intention of the parties is the goal in the interpretation and construction of a written instrument. ORS 42.240; ¹ Automotive Equip. v. 3 Bees Logging, 251 Or. 105, 444 P.2d 1019 (1968). Intention is deduced from the language used and the surrounding circumstances. ORS 42.220; ² In re Holland's Estate, 180 Or. 1, 175 P.2d 156 (1946).

The language used is ambiguous. There is no specific reference to the required width of the paving for the driveway. The gravel road between the area of plaintiffs' house and the radio tower was to be 'a minimum width of eight feet.' The gravel driveway between the public road and plaintiffs' house was to 'be maintained to its present width,' that is, 17 to 20 feet. Which standard--'eight feet' or 'present width'--governs the county's duty to pave the driveway?

Surrounding circumstances are persuasive that the 'eight feet' standard governs. The county was granted an easement that was only 20 feet wide. There was evidence in the trial court that it would be impractical, if not impossible, to place a 20-foot-wide road on a 20-foot-wide easement because this would leave no room for ditches and cuts required for sound road construction. We agree with the trial judge that the parties did not contemplate a paved road that, with ditches, etc., would be wider than the easement granted the county.

Plaintiffs' argument to the contrary is that an 8-foot-wide paved surface is of no use to them, and it should follow that the parties must have intended a wider road. But plaintiffs fail to state why an 8-foot-wide road is useless....