Ward v. Klamath County

• Decision Date: 25 September 1923
• Citation: 108 Or. 574,218 P. 927
• Parties: WARD v. KLAMATH COUNTY ET AL.
• Court: Oregon Supreme Court

218 P. 927

108 Or. 574

WARD v. KLAMATH COUNTY ET AL.

Supreme Court of Oregon

September 25, 1923

In Banc.

Appeal from Circuit Court, Klamath County; G. F. Skipworth, Judge.

Action by Frank Ward against Klamath County and others. From judgment for plaintiff, defendants appeal. Affirmed.

E. L. Elliott, of Klamath Falls, and Isham N. Smith and John F. Logan, both of Portland, for appellants.

Harrison Allen, of Portland, for respondent.

BURNETT J.

In Klamath Falls, formerly Linkville, the county seat of Klamath county, there are two tracts of land. One, upon which the original courthouse was erected and now stands, is block 35 on the original town plat of Linkville. The other is block 10 on the plat of Hot Springs addition to Klamath Falls. The name of the original town was changed to Klamath Falls, which will explain the allusion to Linkville.

For the east half of block 35, Klamath county claims title by a deed from Quincy A. Brooks and wife of date September 12, 1887 containing the following proviso:

"That this deed is made to said county upon this express condition that said county shall, within five years from this date, erect on said premises a substantial courthouse, and thereafter keep and maintain said courthouse on said premises."

For the west half of that block the county holds a deed from Brooks and wife dated September 10, 1888, with full covenants of warranty and seizin.

On June 30, 1911, the Klamath Development Company, as party of the first part, being the owner of block 10 in Hot Springs addition, executed and delivered to the defendant, Klamath county, party of the second part, a deed to that property containing this condition:

"This deed is given to and accepted by the party of the second part on the following conditions, which are to be binding upon the party of the second part and its successors forever, to wit: The party of the second part shall pay all taxes heretofore levied or assessed against said property and which are now unpaid. The party of the second part shall, as soon as may be practicable, but in any event before the expiration of five (5) years from the date hereof, construct and complete upon said land a courthouse, jail and other necessary structures suitable for the transaction of the judicial and fiscal business of said Klamath county for said Klamath county, at a cost of not less than two hundred thousand dollars, and shall thereafter perpetually maintain such courthouse on said land, and the said courthouse and other structures shall be used for the carrying on by said Klamath county such judicial and fiscal business as the party of the second part shall see fit to conduct therein. The failure on the part of the party of the second part to comply with foregoing conditions shall render this conveyance null and void, and said land shall forthwith revert to the party of the first part."

On May 13, 1913, Klamath Development Company, as party of the first part, executed a quitclaim deed conveying to Klamath county said block 10, and at the same time addressed a letter to the First Trust & Savings Bank of Klamath Falls, Ore., as follows:

"Gentlemen: We hand you herewith a deed executed by the Klamath Development Co. on the 13th day of May, 1913 conveying to Klamath county the title to block ten in Hot Springs addition to the city of Klamath Falls. This is the land on which Klamath County is now erecting a courthouse. It is our purpose that this deed shall become effective when the following three conditions have been fully complied with:

"1. When the courthouse now under construction has been completed and accepted by Klamath county.

"2. When the courthouse grounds, including all of block ten, have been improved by the grading of the grounds, and the construction of sidewalks, street parking, and curbs.

"3. When the seat of government of Klamath county is moved to and permanently located in the new courthouse on said block ten.

"You are hereby directed to keep this deed in your custody until such time as the above conditions have been fully complied with. At that time you will deliver it to the county commissioners of Klamath county through the county judge."

This letter was signed by the Klamath Development Company, by its president.

During the period of time beginning prior to and continuing after the execution of the last-mentioned deed, Klamath county, operating for itself, without letting any contracts for the same, had expended approximately $150,000 towards building a courthouse on block 10, but same was very far short of completion, the county suspended operations thereon, and for several years the work had entirely ceased. In the early part of the year 1918, the county court of Klamath county had under consideration the matter of erection of a courthouse, and took counsel of some architects about the probable cost of completing the building on block 10 according to the original design and according to a modified scheme, and likewise the cost of building an entirely new and suitable courthouse on block 35. Having considered the estimates, the county court determined to build a new courthouse entire on block 35, and let a contract for the same to the J. M. Dougan Company. On April 12, 1918, the then county judge of Klamath county and one county commissioner made and signed an instrument by which the county court, having decided to construct a courthouse on block 35, and that block 10 would not be used for the purposes mentioned in the deed last hereinbefore mentioned, directed the holder of the deed, the First Trust & Savings Bank, to deliver the instrument to the original holder, Klamath Development Company. There is testimony in the record to the effect that the deed had never been actually placed in the custody of the bank as recited in the letter to that institution, but appended to the instrument signed by the county judge and commissioner is a writing to this effect:

"On demand of Klamath Development Co., I have this day received before mentioned deed dated April 12, 1918, signed C. F. Stone, attorney for said company."

The record is clear however, that the deed was never delivered to the county, and that none of the conditions of the letter to the bank were fulfilled. On this same 12th day of April, the then county judge and said county commissioner ordered that a quitclaim deed be executed to the Klamath Development Company by the county to lot 10 of Hot Springs addition, and accordingly the judge and commissioner made, executed, and delivered to the Klamath Development Company such a quitclaim deed of date April 12, 1918. It is disclosed by the testimony that that county judge was recalled and the present county judge, R. H. Bunnell, defendant herein, was elected in his stead. Thereafter, on May 1, 1918, the following agreement was executed between the Klamath Development Company, party of the first part, and the county of Klamath, state of Oregon, party of the second part:

"This agreement, made and entered into this first day of May, 1918, by and between the Klamath Development Co., a corporation organized and existing under the laws of the state of California, the party of the first part, and county of Klamath, state of Oregon, the party of the second part, witnesseth:

"Whereas, the party of the first part is the owner of that certain lot, piece or parcel of land situate, lying and being in the city of Klamath Falls, in the county of Klamath, state of Oregon, known as and called block ten (10) in Hot Springs addition to said city of Klamath Falls, as so designated, delineated and described in and according to the duly recorded plat of said addition filed in the office of the county clerk of said county, excepting, that portion of block ten (10) which was heretofore deeded to Klamath county on May 13th, 1913, for the erection of a Carnegie library, said deed being recorded on page 48, Book 41 of Deeds of Klamath County:

"Now, therefore, in consideration of the covenants and agreements of the party of the second part, the party of the first part agrees that if the party of the second part will complete and maintain, upon said block ten (10) of Hot Springs addition, a suitable courthouse in which the judicial business of Klamath county shall be carried on, the party of the first part will grant, transfer and convey unto said party of the second part said lot, piece or parcel of land as above described by good and sufficient deed, said deed to be delivered upon the completion and occupancy of said courthouse, provided, however, that the said courthouse will be completed and occupied within two (2) years from the date of this agreement.

"In witness whereof, the party of the first part has, on the day and year first above written, hereunto caused its corporate name to be signed and its corporate seal to be affixed by its vice president, and the county court of Klamath county, Oregon, party of the second part, has hereunto set its hand and seal on the day and year first above written. The Klamath Development Co., by W. B. Parker, Vice President. County Court of Klamath County, by R. H. Bunnell, Judge; by Burrell Short, Commissioner."

The county court having contracted with the J. M. Dougan Company to build a courthouse on block 35, as above stated, that firm actually erected the courthouse according to contract, and obtained a final decree of this court for the payment of the contract price, all as determined in Dougan Co. v Klamath County, 99 Or. 436, 193 P. 645. At this stage of the history of the transactions relating to courthouse building in Klamath county, the plaintiff, Ward, a taxpayer of Klamath county, brings this suit to enjoin the further expenditure of money on the building on block 10 and the levy of any tax designed to continue the...