1

2

3

4 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

5 In the Matter of: Case No.: 17-CV-37767

6 A Declaration That No Deed Restriction nor MEMORANDUM IN SUPPORT OF Dedication on That Piece of Property Known LANE COUNTY’S MOTION FOR 7 as the Butterfly Lot Would Prevent the SUMMARY JUDGMENT

8 Construction of a City Hall, Farmers Market, or Public Space on That Lot, Nor Would 9 Prevent Construction of a County Courthouse on That Piece of Property Known as the 10 Former City Hall Lot

11

12 TABLE OF CONTENTS

13 INTRODUCTION ...... 1 14

15 FACTUAL BACKGROUND ...... 2

16 1. The Skinner Donation and Establishment of the County Seat and Public Square ...... 2 17 2. The Public Square and Courthouse Since 1856 ...... 5 18 3. The legal assertions since the 1950s ...... 7 19 ARGUMENT ...... 8 20 1. The County's title to the Butterfly Lot derives from the 21 Skinner deed recorded in 1856 ...... 8

22 a. The Skinners could not legally transfer any part of their property on the date shown on the 1862-recorded deed, but could legally grant title 23 to the County at the time of the 1856 deed ...... 8 24 b. The 1862-recorded deed is void as to the 1856 deed under Oregon 25 recording law ...... 9

Page i –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

2. The 1856 deed does not contain restrictions that limit the County’s use of the 1 property or require that the courthouse be perpetually located upon the deeded land ...... 11 2 a. The first and second Stansbery categories are not applicable to this case ...... 12 3 b. The third Stansbery category is not applicable to this case ...... 14 4

5 c. The fourth Stansbery category applies to this case ...... 14

6 d. “Permanent” does not mean “perpetual.” ...... 16

7 e. The extrinsic evidence does not support a restriction that limits the use of the property ...... 17 8 3. The dedication of the public square does not prevent the use of the South 9 Parcel of the Butterfly Lot for a farmers market or other public use, nor construction of a city hall on the North Parcel of the Butterfly Lot ...... 20 10 a. The dedication of the public square does not prevent development of a 11 portion of the square for a farmers market or other public use ...... 20

12 b. The dedication of the public square does not apply to the North Parcel of the Butterfly Lot ...... 24 13 CONCLUSION ...... 24 14

15 TABLE OF AUTHORITIES 16 Cases 17 City of Klamath Falls v. Bell, 7 Or App 330, 490 P2d 515 (1971) ...... 12 18 Clark v. Jones, 173 Or 106, 144 P2d 498 (1943) ...... 12 19 Davis et al v. Lane County and City of Eugene, Lane Co. Cir. Ct. Case No. 4150 (1897) ...... 6 20 Dayton v. Jordan, 279 Or.App 737, 381 P3d 1031 (2016) ...... 20, 22 21 Dolph v. Barney, 5 Or 191 (1874), affirmed 97 US 652, 24 Led 1063 (1878) ...... 8, 9 22

23 Eugene School Dist. No. 4J v. City of Eugene, 2007 WL 5813753 (Or Cir April 2, 2007) ...... 14, 15 24 Lane County v. City of Eugene, Lane Co. Cir. Ct. Case No. 3855 (1896) ...... 6 25 Meade v. Ballard, 74 US 290, 19 Led 190 (1868) ...... 16, 17

Page ii –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

1 Murdoch v. Klamath County Court, 62 Or 483, 126 P 6 (1912) ...... 18

2 Security & Invest. Co. v. Oregon City, 161 Or 421, 90 P2d 421 (1939)...... 20, 21 3 Stansbery v. First Methodist Episcopal Church, 79 Or 155, 154 P 887 (1916) ...... passim 4 Stark v. Starrs, 73 US 402, 418 (1867) ...... 8 5 Ward v. Klamath County, 108 Or 574, 218 P 927 (1923) ...... 13 6 Wirostek v. Johnson, 266 Or 72, 511 P2d 373 (1973) ...... 17 7 Statutes 8

9 ORS 33.710 ...... 25

10 ORS 33.720 ...... 25

11 ORS 92.150 ...... 22

12 ORS 93.120 ...... 13

13 ORS 93.640 ...... 9

14 ORS 275.330 ...... 7

15 Other Authorities 16 Act of Congress, 18 Cong. Ch. 169 (1824) ...... 3 17 Act to Establish the Territorial Government of Oregon, 9 Stat. 323-331 (1848) ...... 2 18 Champ Clark Vaughan, History of the General Land Office in Oregon 45 (U.S. 19 Department of the Interior, Bureau of Land Management) ...... 8

20 City of Eugene, History of Eugene City Hall, https://www.eugene- or.gov/2912/History, (last visited October 23, 2017) ...... 6 21

22 Donation Land Act, 9 Stat. 496 (1850) ...... 2, 8, 9

23 General Laws of Oregon, Ch. 7, Title I §26 (1854) (effective May 1, 1855) Regular Session 16-17 (Bush 1853) ...... 10, 14 24 Special Laws and Joint Resolutions of the Legislative Assembly of the Territory 25 of Oregon, 4th Regular Session 16-17 (Bush 1853) ...... 2, 18

Page iii –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

1 INTRODUCTION

2 This matter concerns a fully-executed purchase and sale agreement for two parcels of 3 land in downtown Eugene: the Former City Hall Lot and the Butterfly Lot. Petitioners seek a 4 declaration that there is no restriction on selling the properties or using the Butterfly Lot to 5 construct a city hall or for certain other uses, nor would prevent construction of a county 6 courthouse on the Former City Hall Lot. Pursuant to that purchase and sale agreement, the City 7 of Eugene is preparing to build a new city hall and farmers market on the property to be obtained 8 from the County (the "Butterfly Lot"), and the County has begun planning for construction of a 9

10 new county courthouse on the property to be obtained from the City (the "Former City Hall

11 Lot"). The exchange of properties and planned construction will require the expenditure of over

12 $100 million dollars in public funds.

13 The Butterfly Lot being acquired by the City for its city hall and farmers market

14 projects is located within the 40 acres of land donated to the County in the mid-1850s by Eugene

15 and Mary Skinner. The Former City Hall Lot being acquired by the County is outside that 16 Skinner land donation. In the past, the County has been presented with legal opinions asserting 17 that either terms in the original deed donating the land to the County, or the County's subsequent 18 dedication of a portion of the Skinner donation as a public square, had created restrictions that 19 legally prohibit both the planned sale and exchange of lots and the planned construction of the 20 new city hall, farmers market, and county courthouse projects. 21 The City, County, and Urban Renewal Agency contend that neither the Skinners' deed 22

23 granting title to the County, nor subsequent County action, have created any restriction that

24 would prevent the sale and exchange of the properties or construction of the planned projects.

25 Due to the substantial amount of public funds that would be placed at risk of loss if restrictions

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on the property prevented construction of one or more of the planned projects, the City, County, 1 and Urban Renewal Agency seek a judicial determination that no such restrictions exist. 2

3 FACTUAL BACKGROUND

4 1. The Skinner Donation and Establishment of the County Seat and Public Square.

5 The title to the land donated by Eugene and Mary Skinner derives from their claim for a

6 square mile of land lying along the Willamette River, upon which they settled in 1846 or 1847,

7 two years prior to the Congressional Act that created the Oregon Territory1. See Chaney Decl. 1,

8 2 Ex. 3. That 1848 Act explicitly voided any existing land rights claimed by settlers , so it was not 9 until the passage of the Donation Land Act in 1850 (9 Stat. 496 (1850)) that a law was in place to 10 permit settlers in the Oregon Territory to acquire title to land they had claimed. Under the 1850 11 Act, qualified persons who had settled prior to December 1 of that year could gain title to their 12 claimed land—but not until the land had been surveyed, lived on for a minimum number of 13 years, and all notifications and proofs required under the Act had been filed with the Surveyor 14 General for the Territory of Oregon.3 15

16 The Territorial legislature established Lane County in 1851, and pursuant to a

4 17 subsequent 1853 law establishing a method to choose a location for the county seat, the new

18 county's Board of Commissioners selected Eugene City as the county seat for Lane County

19 1 An Act to Establish the Territorial Government of Oregon, 9 Stat. 323-331 (1848). 20 2 "[A]ll laws heretofore passed in said Territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be null and void * * *." Id., §14. 21 3 "[W]ithin twelve months after the surveys have been made, or, where the survey has been made before the settlement, then within twelve months from the time the settlement was commenced, each person claiming a 22 donation right under this act shall prove to the satisfaction of the surveyor-general, or of such other officer as may be appointed by law for that purpose, that the settlement and cultivation required by this act has been commenced, 23 specifying the time of the commencement; and at any time after the expiration of four years from the date of such settlement, whether made under the laws of the late provisional government or not, shall prove in like manner, by two disinterested witnesses, the fact of continued residence and cultivation required by the fourth section of this act; 24 and upon such proof being made, the surveyor-general, or other officer appointed by law for that purpose, shall issue certificates under such rules and regulations as may be prescribed by the commissioner of the general land office, 25 setting forth the facts of the case, and specifying the land to which the parties are entitled." 9 Stat. 496, §7. 4 Special Laws and Joint Resolutions of the Legislative Assembly of the Territory of Oregon, 4th Regular Session 16-17 (Bush 1853). Page 2 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 2 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

during its July Term, 1853. Chaney Decl., 2. In the same Term, and with reference to promised 1 donations of land from both the Skinners and another settler couple, Charnel and Mary Mulligan, 2

3 the County immediately set about selling lots platted from the promised donations—such sales

4 taking the form of bonds guaranteeing the buyer title to a lot once the County had received its

5 title to the property that was to be donated. Lane Co. Comm. J., Bk. A 61. (See Hoehne Decl.,

6 Ex. 1). The Board authorized execution of the bonds for lots sold in September, 1853. Lane Co.

7 Comm. J., Bk. A, 31-32. 8 On July 5, 1854, the Board took action to claim an additional 80 acres of land adjacent 9 to the proposed Skinner and Mulligan donations of 40 acres each: 10 Ordered that we now proceed to select that Quartersection land to which the 11 county is Entitled for the benefit of the County seat, as provided by act of Congress passed May 26, 1824 and that such selection be made so as to include 12 Eighty acres (in accordance with said Law) adjoining and lieing [sic] north and East of the land now claimed and occupied by the county as the donations of E. F. 13 Skinner and Charnel Mulligan to the county for county purposes.5

14 Lane Co. Comm. J., Bk. A 61. (See Hoehne Decl., Ex. 2).

15 Though the Board rescinded that action a few days later, the claim of entitlement to pre- 16 emptively take additional land would not terminate until the settlers who claimed the land 17 received full title to their land.6 At the same meeting where the Board rescinded its claim to an 18 additional 80 acres of land, the Board directed that bonds be prepared for execution by both the 19 Mulligans and the Skinners to guarantee their donations to Lane County. Lane Co. Comm. J., 20 Bk. A 80-81. (See Hoehne Decl., Ex. 3). 21

22 5 18 Cong. Ch. 169. Chaney Decl., Ex. 2. 6 23 Though the Commissioners' records contain no further mention of this law, the issue apparently remained on the mind of Eugene Skinner, because he brought it up a year later in his July 5, 1855 letter to the Office of the Surveyor General. In that letter, Skinners demanded that: 24 I would like to be informed how the impression has gone out from your Office that County Commissioners can deposit with the receiver $200.00 (dollars) and Enter out of the Office (of 25 land) 160 acres of my land for County purposes, or 160 acres of any private land claim for Co. purposes . . . [underlining in original] Chaney Decl., Ex. 3, page 26-27. Page 3 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 3 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

With reference to the Mulligans' and Skinners' promises, the Board acted to set aside a 1 public square in December, 1854, "in Eugene City, the present County Seat of Said County"7, 2

3 consisting of an undivided area within the promised donations, 400 feet on a side. Lane Co.

4 Comm. J., Bk. A, 89. (See Blommé Decl., Ex. 1). In July of 1855, the Board further ordered the

5 dedication of a 100 foot wide roadway around the square, and the County's first courthouse was

6 then constructed within the square. Lane Co. Comm. J., Bk. A, 127-128. Unfortunately, the

7 description of the square used in the order did not make sense, compared to the corresponding 8 plat that was filed, so it was not until 1896 that the Board took action to formally dedicate the 9 square in its present location. Blommé Decl., 1, Ex. 2. 10 No formal record exists of the promised Skinner land donation until, upon order of the 11 Board, the bond received from the Skinners to guarantee their donation was recorded. Lane Co. 12 Comm J., Bk. A 162-163. (See Hoehne Decl., Ex. 4) This was followed by the recording of the 13 original plat of Eugene City on May 5, 1856 (the "Brattain Plat"). Blommé Decl., Ex. 2. Three 14 months later, on July 12, 1856, the Board received and approved a deed from the Skinners, 15

16 which is recorded in the Commissioners' Journal as follows:

17 Deed of EF Skinner and wife to their donation of a portion of the town plat of Eugene City presented to the Board and it is ordered that said deed be accepted 18 and said Skinner be allowed to lift his bond.

19 Lane Co. Comm. J., Bk. A 188. (See Hoehne Decl., Ex. 5)

20 The Skinners' deed was recorded in the County's deed book the same day, July 12, 1856. 21 Blommé Decl., Ex. 3. The Skinners were issued a patent dated August 29, 1860 from the United 22 States General Land Office granting them title to their claimed lands. Chaney Decl., 3. Nearly 23 six years later, another deed from the Skinners to the County for the same property, dated May 24

25 7 In all the discussion captured in the records relating to where the county's 'seat of justice' is to be placed, this is the first reference in the Board's records to the specific location of the county seat. Page 4 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 4 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

17, 1855, but containing different phrasing, was recorded on March 14, 1862.8 Blommé Decl. 2, 1 Ex. 4. 2

3 2. The Public Square and Courthouse Since 1856.

4 The area that was platted and used as the public square, as laid out, was contrary to the

5 platted grid of all other streets in Eugene City, with the effect that its location prevented through

6 traffic on Oak Street and 8th Avenue, as shown in the Brattain Plat. See Blommé Decl., Ex. 2. In

7 1869, a group of citizens requested and received permission from the County's Board to relocate 8 the courthouse to allow the affected streets to be extended through the square. Lane Co. Comm. 9 J., Bk. C, 79-80. The courthouse was relocated to the northeast corner of the public square, and 10 8th and Oak were extended across the square later that year. In a companion action, Mary 11 Packard, widow of Eugene Skinner (since remarried), executed a deed to the County granting her 12 permission for the relocation of the courthouse, and that deed was recorded July 12, 18699. See 13 Hoehne Decl., Ex. 6. 14 The extension of the streets divided the square into quadrants, the northwest one of 15

16 which already contained the existing county jail, constructed in 1858. In 1872, the County

17 approved a lease of another portion of the same northwest quarter-block to the City of Eugene

18 for its city hall and fire station. Lane Co. Comm. J., Bk. C, 265. (See Hoehne Decl., Ex. 7). By

19 1890, those had been joined by both a city jail and various sheds, all sharing the same block.

20 Chaney Decl., Ex. 4. During the same period, the County in 1899 reduced the width of the 100 21 foot roadway around the square to the same 66 foot width of the other downtown streets; the 22

23 8 A search of historic documents, deed records, and Commissioners' Journals produces no other contemporary record 24 relating to the 1855-dated deed, other than the sworn testimony taken by the referee in the 1897 Davis lawsuit against the County and City. In that testimony, former County Judge J. J. Walton stated that there was an earlier 25 Skinner deed that was rejected by the Board, and that, some years later after a replacement deed had been accepted and recorded, the then-county Clerk found the 1855 deed in the Clerk's office and recorded it without authorization. 9 Perhaps not coincidentally, it is dated and recorded 13 years to the day after the 1856 deed was dated and recorded. Page 5 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 5 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

vacated outer 34 feet was sold to the adjacent property owners. Lane Co. Comm. J., Bk. 7, 547- 1 554. 2

3 Beginning in the 1890s, as the Board discussed the need to construct a new and larger

4 county courthouse, issues arose regarding the legality of, and title to, both the dedication of the

5 public square and the street rights-of-way that had been extended across it. First, the County

6 Board determined that the location of the public square, as originally dedicated, was erroneous,

7 and ordered a new dedication and survey of the public square in its actual location in 1896. Lane 8 Co. Comm. J., Bk. 6, 593 (See Hoehne Decl., Ex. 8) In the same year the County filed a lawsuit 9 against the City of Eugene, seeking to confirm the County's title to the streets across the square. 10 Lane County v. City of Eugene, Lane Co. Cir. Ct. Case No. 3855 (1896). The County dismissed 11 that action the following year. Id. Apparently prompted by the dismissal of that claim, a group of 12 private parties sued both the County and the City in 1897, a suit which sought to have the streets 13 across the square removed. Davis et al v. Lane County and City of Eugene, Lane Co. Cir. Ct. 14 Case No. 4150 (1897). That action, too, was ultimately dismissed. Id. Thus, the streets remained, 15

16 and in 1898 construction of a new courthouse was commenced on the northeast block, to replace

17 the 1855 courthouse that had been relocated there thirty years earlier.

18 Despite the prior approval of the lease to the City in 187210, in 1908 the County's Board

19 demanded that the City remove its city hall and city jail from the northwest (Butterfly) block.

20 Lane Co. Comm. J., Bk.10, 326. That demand was repeated the following year, and the City 21 ultimately relocated both functions to a new city hall at 11th Avenue and Willamette Street in 22 1914.11 Lane Co. Comm. J., Bk. 10, 562. In the mid-1950s, having purchased all the lots directly 23 north of the northwest block, the County vacated the remaining 66 feet of roadway between 24

25 10 No copy of this document is to be found in City or County records. 11 City of Eugene, History of Eugene City Hall, https://www.eugene-or.gov/2912/History, (last visited October 23, 2017). Page 6 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 6 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

those lots and the block, and constructed the "butterfly"12 parking structure on the combined site. 1 Lane Co. Comm. J., microfilmed on Co. Comm. Rec., Reel 7 (1959). At about the same time, the 2

3 County also constructed a new courthouse located entirely outside the area of the public square,

4 just to the north of the 1898 courthouse (which was then demolished). See Craner Decl., Ex. 1.

5 3. The legal assertions since the 1950s.

6 In both the 1950s and the 2000s, the County received legal opinions stating that the sale

7 of any part of the public square would be illegal, or that the Butterfly Lot area must be used for 8 courthouse-related purposes. 9 The first opinion was given in the mid-1950s, when the County considered selling one 10 of the southerly park blocks to the City of Eugene for a library. In a 1954 opinion, the Lane 11 County District Attorney concluded that "It appears that, on December 7, 1954 [sic], the county 12 court, consisting of three commissioners, did cause an order to be entered setting aside the 13 particular area as a park and recreational area," with the result that, under ORS 275.330 as 14 amended in 1951, the land in the public square "may not be alienated by county court for any 15

16 purpose unless authorized by a majority of the voters of the county in a regular or special

17 election" unless the conveyance was "made without payment or compensation." Chaney Decl.,

18 Ex. 5.

19 The second opinion was received in 2007, when the County first considered selling the

20 entire Butterfly Lot to the City of Eugene as a site for a new city hall. The May 25, 2007 letter 21 received from the Lane County Circuit Court made reference to language contained in the 1862- 22 recorded Skinner deed, concluding that "It is the position of Presiding Judge Mary Ann Bearden 23 that the proposed sale would violate the deed restrictions," and went on to state that the Court 24

25 12 That parking structure came to be known as the "butterfly" parking lot, apparently based on a perceived similarity between the structure's inverted-V profile and the shape of a butterfly's wings. Page 7 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 7 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

"has employed counsel, and will take any necessary legal steps to ensure that the deed 1 restrictions be enforced." Chaney Decl., Ex. 6. 2

3 ARGUMENT

4 1. The County's title to the Butterfly Lot derives from the Skinner deed recorded in 1856. 5 Only one of the deeds recorded in the name of Eugene and Mary Skinner could have 6 granted title to the County for the 40 acres of land donated by them. Both deeds are for the same 7 parcel of land, from the same grantors, to the same grantee; but each is worded differently, bears 8

9 a different date, and was recorded at a different time. Blommé Decl. 1, Ex. 3, Ex. 4. In order to

10 decide whether the language of the Skinners' deed creates any conditions or restrictions on the

11 property, the court must first determine from which deed the County derives its title.

12 a. The Skinners could not legally transfer any part of their property on the date shown on the 1862-recorded deed, but could legally grant title to the County 13 at the time of the 1856 deed.

14 The standard for when title granted by a patent13 could be transferred, if obtained

15 pursuant to the Donation Land Act, was established by the court in Dolph v. Barney, 5 Or 191 16 (1874) affirmed 97 US 652, 24 Led 1063 (1878). The Dolph court recognized that, under section 17 IV of the Donation Land Act as passed in 1850 "all future contracts for the sale of lands granted 18 were declared void," and thus unenforceable. Id. at 204. However, commencing with the repeal 19 of that section on July 17, 1854, "donees have had full power of alienation in all cases where 20 they had resided upon the land for four years, and made the proper proof of residence and 21 cultivation." See also Stark v. Starrs, 73 US 402, 418 (1867) ("[w]hen, in fact, the patent does 22

23 13 The document used by the U. S. government to transfer title to settlers claiming land was the land patent, which 24 was issued by the federal government after the Surveyor General had issued a certificate establishing the claimant's entitlement to the land under the law. Champ Clark Vaughan, History of the General Land Office in Oregon 45 (U.S. 25 Department of the Interior, Bureau of Land Management). The patent was "basically a quitclaim deed issued and guaranteed by the United States Government. It does not constitute title but is mere evidence of right to title under existing law." Id. Page 8 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 8 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

issue, it relates back to the inception of the right of the patentee."). Thus, even though the settler 1 did not possess legal title until the date the settler's patent was issued, a grant made before that 2

3 date could be used to transfer the title subsequently obtained under the Donation Land Act,

4 provided that the requirements for receiving a patent had already been met, and the grant was

5 made after the date of the amendment in 1854.

6 Because Eugene Skinner filed the claim on behalf of himself and his wife on April 27,

7 1853, submitted the last of necessary documents proving the claim October 6, 185514, and 8 ultimately received a patent for the claim dated August 29, 1860, then under Dolph a deed 9 executed by the Skinners after October 6, 1855 could be used to grant title to claimed land. The 10 deed that was recorded July 12, 1856, and is dated the same day, meets the Dolph criteria and is 11 therefore effective to transfer title to the County. The deed recorded March 14, 1862 bears the 12 date May 17, 1855, five months prior to the date the Skinners "made the proper proof of 13 residence and cultivation" on October 6. Dolph, 5 Or at 204. Applying the criteria established in 14 Dolph, this deed did not transfer any interest in the property obtained by the Skinners under the 15

16 Donation Land Act.

17 b. The 1862-recorded deed is void as to the 1856 deed under Oregon recording law. 18 Even if the court were to find that the 1862-filed deed could have transferred some 19 measure of title to the County, under Oregon real property recording law the 1856 deed would 20 still be the legal deed. The current version of ORS 93.640(1) provides that: 21 Every conveyance, deed, land sale contract, assignment of all or any portion of a 22 seller’s or purchaser’s interest in a land sale contract or other agreement or 23 memorandum thereof affecting the title of real property within this state which is not recorded as provided by law is void as against any subsequent purchaser in 24 good faith and for a valuable consideration of the same real property, or any

25 14 The final proof of residence in the file is the sworn statement of William Dodson. See Chaney Decl., Ex. 3, page 29. Page 9 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 9 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

portion thereof, whose conveyance, deed, land sale contract, assignment of all or 1 any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement or memorandum thereof is first filed for record, and as against the heirs 2 and assigns of such subsequent purchaser. 3 Even in 1856, the recording law then in effect contained the same basic requirements: 4 Every conveyance of real property within this state hereafter made, which shall 5 not be recorded as provided in this title, within thirty days thereafter, shall be void against any subsequent purchaser in good faith, and for a valuable consideration, 6 of the same real property, or any portion thereof, whose conveyance shall be first duly recorded. 7 General Laws of Oregon, Ch. 7, Title I §26 (1854) (effective May 1, 1855). 8 Under either statute, an earlier-recorded deed will prevail over an unrecorded earlier conveyance, 9

10 if the grantee is (1) a purchaser, (2) in good faith, (3) for valuable consideration, (4) of the same

11 property, and (5) records first.

12 The Skinner deed that was dated and recorded July 12, 1856, and acknowledged in the

13 Commissioners' Journal on the same date, was accepted by the Board. In exchange for that deed,

14 the Board ordered that Skinner was authorized to "lift his bond" in their possession that 15 guaranteed the donation of land, and the accepted deed was recorded the same day. Immediately 16 following the action of acceptance and release, the Board ordered the execution of deeds for lots 17 sold within the land donated. Lane Co. Comm. J., Bk. A, 188. The County's actions, as recorded, 18 demonstrate that the County met the statutory requirements for priority: 19 (1) The County purchased the deed, with the release of the bond; 20 (2) The County acted in good faith, as is demonstrated by the acceptance, by the 21

22 release of the Skinners' bond, and commencement of sales in direct reliance upon having

23 received the deed, and without objection from any party;

24

25

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(3) The County gave valuable consideration, in the form of a cash value bond15; 1 (4) The deeds are for the same property, the 40-acre parcel now known as the 2

3 Skinner Donation; and

4 (5) The 1856 deed was first recorded, on July 12, 1856, nearly six years before the

5 deed recorded on March 14, 1862.

6 Applying either current law, or the law as it was at the time of the transaction, the deed recorded

7 in 1862 is invalid against the deed dated and recorded in 1856.16 8 2. The 1856 deed does not contain restrictions that limit the County’s use of the 9 property or require that the courthouse be perpetually located upon the deeded land. 10 This Court’s examination of the 1856 deed will be guided by Stansbery v. First Methodist 11 Episcopal Church, 79 Or 155, 154 P 887 (1916), a case directly on point. In Stansbery, the 12 Oregon Supreme Court analyzed the conveyance of property to the defendant church “for the 13 purpose of a parsonage, church, etc.” Id. at 165. When the defendant church closed the building 14 and ceased church activities on the property, the plaintiffs, members of the church, brought an 15

16 action seeking to enjoin the defendant from closing the church building and selling, leasing, or

17 otherwise disposing of the property. Id. at 158. In consideration of the meaning and legal effect

18 of the words, “for the purpose of a parsonage, church, etc.17,” the Oregon Supreme Court

19 identified four categories of conveyances which contain words relating to a specified use of land:

20 (1) where a condition subsequent is created; (2) where a conditional limitation is prescribed; (3) 21

22 15 The Skinner bond recorded April 12, 1856 was in the amount of $25,000, a considerable amount of money for the 23 time. Chaney Decl., 3. 16 It is worth noting that the 1862 deed recites only nominal consideration, and is unsupported by any extrinsic 24 evidence other than its date of recording, which is nearly seven years after the date it bears on its face. It is also difficult, if not impossible, to reconcile the Commissioners' April 11, 1856 order to record the Skinners' bond 25 guaranteeing the future donation of 40 acres of land with the existence of a previously-executed deed, or to reconcile the Skinners subsequent tendering of a deed in 1856, if they believed a valid deed already existed. 17 The Court defined “etc.” to mean “and other like purpose.” Stansbery, 79 Or at 172. Page 11 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 11 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

where a trust is declared; and (4) where the motive of the grantor is announced or the intention of 1 the grantee is revealed, without stating a condition, or prescribing a limitation, or creating a trust, 2

3 or imposing an obligation of any kind. Id. at 172–73.

4 a. The first and second Stansbery categories are not applicable to this case.

5 The 1856 deed contains no specified conditions, the occurrence of which would cause

6 title to the property to terminate in the grantee and return to the grantors or their heirs. Such

7 conditions can take either of two forms: in the first, the grantor must take action to assert a right

8 of re-entry, and in the second, title automatically reverts. See City of Klamath Falls v. Bell, 7 Or 9 App 330, 334-35, 490 P2d 515 (1971). A phrase such as “so long as” suggests a time limitation 10 or duration of a conditional conveyance. Id. See also Clark v. Jones, 173 Or 106,107-08, 144 P2d 11 498 (1943) (“The words ‘so long as’ connote a time limitation or duration of the estate. In the 12 instant case, the grantors, in effect, said to the school district, ‘We convey this estate to you to 13 have and to hold forever so long as you use the property for school purposes, but when you fail 14 so to do, the property will at once revert to us or our heirs or assigns.’”) Here, no such limiting 15

16 conditions appear which would trigger re-entry or automatic reversion of the land conveyed by

17 the 1856 deed. The granting clause of the 1856 deed states that the Skinners:

18 [D]o hereby grant, bargain, give, donate, release and confirm unto the said County Commissioners aforesaid party of the second part and their successors in office 19 forever for the use and benefit of said County of Lane for County seat purposes all of that certain tract or parcel of land containing forty acres known and 20 described as follows to wit [property description removed]. (emphasis added).

21 The habendum clause of the 1856 deed articulates the extent of the property 22 conveyed: 23 [T]o have and to hold the above granted donated and described premises for the 24 uses and purposes above mentioned with the appurtenances thereunto belonging or in any wise appertaining thereunto on the Fourteenth Day of June One 25 Thousand Eight Hundred and Fifty Three unto the said Board of County

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Commissioners and their successors in office in and for said County of lane 1 forever. (emphasis added).

2 The deed here contains no language in the conveyance providing for any event which 3 would trigger a right of re-entry or a reversion back to the Skinners or their heirs because: (1) 4 there is no language in the conveyance which could be construed to allow the grantors to 5 reacquire the property if it were no longer used for the location of the Lane County Courthouse; 6 and (2) both the granting clause and the habendum clause unambiguously state that the Skinners 7 are transferring the title in fee simple to the Lane County Commissioners and their successors in 8 18 9 office, “forever.” See ORS 93.120 and Ward v. Klamath County, 108 Or 574, 583, 218 P 927

10 (1923). In Ward, even with a condition clearly stated in the deed, that a courthouse be built

11 within five years from the date of the deed on a specified parcel of land, and which ultimately

12 was not built on that parcel, the court held:

13 [The property] was conveyed by Brooks and wife to the county, substantially to be used for courthouse purposes, but the deed contains no reverter clause. There is 14 no defeasance provided for by the terms of the instrument. For lack of that, the language of the deed does not constitute a condition subsequent. At the very most 15 it cannot be considered more seriously than as a covenant, the breach of which 16 would only be ground for the recovery of damages, and would not work out the defeat of the title….We conclude therefore that the county has an indefeasible 17 title to [the property].

18 108 Or at 583.

19 Here, even if the language in the 1856 deed could be viewed as a covenant, pursuant to

20 Stansbery, the ensuing 160 years of the Lane County Courthouse being situated upon the Skinner 21

22

23

24

25 18 “Any conveyance of real estate passes all the estate of the grantor, unless the intent to pass a lessor estate appears by express terms, or is necessarily implied in the terms of the grant.” Page 13 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 13 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

property would suffice to satisfy the terms of any such covenant.19 See Stansbery, 79 Or at 178 1 (use of land for church purposes for 60 years “fully satisfied” any contractual obligation). 2

3 The deed here contains no language in the conveyance providing for any event which

4 would trigger a right of re-entry or a reversion back to the Skinners or their heirs. Therefore, the

5 first and second Stansbery categories are not applicable to this case.

6 b. The third Stansbery category is not applicable to this case.

7 The 1856 deed does not declare a trust; therefore, the third Stansbery category does not

8 apply in this case. “The Oregon Supreme Court provides, that as a general rule, where a 9 conveyance is held to create a trust, the language of the deed not only specifies the purpose for 10 which the land is to be used, but also expressly states, for example, that the realty shall be used 11 for the purpose ‘only,’ or ‘forever20,’ or ‘for no other purpose,’ or shall be held ‘in trust’ for a 12 defined purpose.” Eugene School Dist. No. 4J v. City of Eugene, 2007 WL 5813753 (Or Cir 13 April 2, 2007) (citing Stansbery, 79 Or at 173 (citing cases “where a trust is declared.”)). 14 In this case, the conveyance was made “for the use and benefit of said County of Lane for 15

16 County seat purposes,” but nowhere in the language of the deed does it state that the property

17 must be used for that purpose “only,” or “forever,” or “for no other purpose.” Nor does the

18 language of the deed specifically state that it shall be held “in trust” for the stated purpose. The

19 1856 deed does not declare a trust. Therefore, Stansbery category three does not apply here.

20 c. The fourth Stansbery category applies to this case. 21

22

23 19 The Oregon law then in effect reinforces the court's interpretation: "any conveyance of real estate hereafter executed, shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear in express terms, 24 or be necessarily implied in the terms of the grant." General Laws of Oregon, Ch. 7, Title I §4, 6 (1854). 20 The 1856 deed also contains the word “forever.” However, that word is used not in connection with the use of the 25 donated land, but in expressing the grant term, transferring title in fee simple "[u]nto the said Board of County Commissioners and their successors in office in and for said County of Lane forever" and " and warrant and defend forever the above granted and described premises." Id. Page 14 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 14 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

This case should be analyzed under the fourth Stansbery category, where the motive or 1 the intention is revealed, without stating a condition, limitation, or obligation. The granting 2

3 clause of the 1856 deed states that the purpose for the Skinner’s donation of the forty acres is

4 “for the use and benefit of said County of Lane for County seat purposes.” In Stansbery, the

5 Court concluded that in order to prove a deed contains a restriction that limits the use of property

6 conveyed, the party claiming a limitation exists would have to prove that the deed: (1) specifies a

7 purpose which is exclusive, and (2) by appropriate language, expressed or imported, a perpetual 8 use of the land itself for that exclusive purpose. Stansbery, 79 Or at 173. 9 A deed may impose a limitation on use if its stated purpose is coupled with words or 10 phrases such as “only” or “forever” or “none other” or “for no other purpose.” Eugene School 11 Dist. No. 4J, 2007 WL 5813753 (citing Stansbery, 79 Or at 173). If such words or phrases do 12 not accompany the stated purpose, the conveyance does no more than “express the motive of the 13 grantors or to announce the intention of the grantee.” Stansbery, 79 Or at 173-74, 176. 14 The Oregon Supreme Court further states: 15

16 Words indicating an exclusive purpose and signifying permanency must appear in order perpetually to fetter upon the land the burden of an exclusive use, and sound 17 reason underlies and gives stability to the rule. The law not only favors the vesting of estates, but when the fee is conveyed all doubts should, as a rule, be 18 resolved in favor of a free use of the property and against restrictions. Id. at 176- 77 (citing McElroy v. Pope, 153 Ky 108 (1913), Hutchinson v. Ulrich, 145 Ill 336 19 (1893), Adams v. First Baptist Church of St. Charles, 148 Mich. 140 (1907) (citing Downen v. Rayburn, 214 Ill 342 (1905)). 20 79 Or at 176-77. 21

22 Here, the deed does not state that the land was conveyed for county seat purposes “only”

23 or “forever” or “none other” or “for no other purpose.” Therefore, the conveyance does no more

24 than “express the motive of the grantors or to announce the intention of the grantee.”

25 Furthermore, it is contrary to public policy to “favor a construction that would give to a man,

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who died a hundred or a thousand years ago, the control of land that ought to be controlled by the 1 present generation,” and which should be construed to allow for the “changes necessarily 2

3 incident to the progress of society.” Id. at 177 (citing Griffitts v. Cope, 17 Pa 96, *4 (1851)). An

4 intention which would effectively limit such progress “ought to be expressed, not implied.” Id.

5 The proposed land swap between the City of Eugene and Lane County is made in part for

6 the purpose of constructing a new courthouse that is safe and suitable for the courts and

7 transactions of public affairs. Such progress should not be fettered, unless the grantor’s intention 8 to limit the purpose of the land conveyed is expressly stated. The deed at issue here in its entirety 9 neither expresses nor implies that the property must be used exclusively for county seat 10 purposes, and construing such a limitation is contrary to the progress of Lane County, the City of 11 Eugene, and the citizens thereof. 12 Additionally, Lane County’s use of the donated 40 acres in the time since it was 13 conveyed by the Skinners further evidences that the parties did not intend to limit the use of the 14 property “forever” and “exclusively” for county seat purposes. Although the Lane County 15

16 courthouse has been located on the property since 1855, the property has also been used for other

17 purposes, including selling off the greater part of the conveyed forty acres as lots to private

18 citizens and, shortly after, situating the Lane County jail and the City of Eugene city hall, fire

19 house, and jail. Therefore, the language in the deed discussing the “permanent location of the

20 seat of justice” and “for county seat purposes” is no more than an expression of the grantor’s 21 motive in conveying the property or an announcement of the County Commissioners’ original 22 intention in accepting the property, and has no legal effect. 23 d. “Permanent” does not mean “perpetual.” 24 There is language in the deed referring to the “permanent location of the seat of justice,” 25 but “permanent” does not mean “forever” or “perpetual” under existing case law. In Meade v.

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Ballard, the Court concluded that, where land was conveyed on condition that an institute of 1 learning “should be permanently located” on the conveyed land, such condition of the deed was 2

3 performed when the original building was built within the time period expressed in the deed, and

4 the subsequent erection of the replacement building on another site (after the first was destroyed

5 by fire) did not result in forfeiture of the land or reversion of the title. 74 US 290, 294, 19 Led

6 190 (1868).

7 The Court further stated that any other construction of the contract “is something more 8 than a condition to locate. It is a covenant to build and rebuild; a covenant against removal at any 9 time; a covenant to keep up an institution of learning on that land forever, or for a very indefinite 10 time. This could not have been the intention of the parties.” Id. at 294-95. Similarly, when the 11 Board had the original courthouse constructed on the land conveyed by the Skinners, the Board 12 had permanently located the county seat within the true meaning of the contract, and the act of 13 "permanently locating" was complete. 14 e. The extrinsic evidence does not support a restriction that limits the use of the 15 property. 16 In the event the court finds that the recital and operative clauses cause ambiguity in the 17 deed, it is proper for the Court to consider extrinsic evidence in order to determine the parties’ 18 intent. In construing a deed, it is the duty of the Court “to ascertain and give effect to the 19 intentions of the parties, as evidenced by the language of the instrument and the circumstances 20 attending its execution.” Wirostek v. Johnson, 266 Or 72, 75, 511 P2d 373 (1973). 21 First, the references in the 1856 deed to the “permanent location of the seat of justice” 22

23 and “to locate permanently the seat of justice in and for the County of Lane” are not used to

24 reflect the intention of the Skinners to limit the use of the conveyed forty acres. (emphasis

25 added). Rather, the reference to “permanent” appearing in the deed is form language taken

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directly from the 1853 Act to Provide for the Location of the County-Seat of Lane County, 1 passed on January 12, 1853.21 See §§ 1, 3, 5, 7 (1853) (authorizing the qualified electors of Lane 2

3 County to vote for the “permanent location of [the] county-seat.”), Special Laws and Joint

4 Resolutions of the Legislative Assembly of the Territory of Oregon, 4th Regular Session 16-17 (Bush

5 1853). The Act is specifically referenced in the deed. The Skinners granted the property:

6 [I]n pursuance of and in accordance and compliance with an act of the legislature of said Territory of Oregon passed January the twelfth AD 1853 enabling the 7 people of said County of Lane by an election (which was held on the fifth day of June AD 1853) to locate permanently the seat of justice in and for the County of 8 Lane in the Territory of Oregon. (emphasis added).

9 Second, the term “county seat” in the 1856 deed does not limit the location of the 10 courthouse to the Skinner land designated “for county seat purposes.” “The term ‘county seat’ 11 applies not merely to the lot or block and the buildings used for transacting the public business, 12 but to the territory designated by law, and by expression of the people locating the county seat.” 13 Murdoch v. Klamath County Court, 62 Or 483,489, 126 P 6 (1912). Changing the location of the 14 courthouse does not change the location of the county seat. Id. If the proposed site for the new 15 county courthouse is within the limits of the county seat, construction of the new courthouse is 16

17 “a proper exercise of official authority in the absence of limitation upon such power.” Id. at 486.

18 Pursuant to the 1853 Act to Provide for the Location of the County-Seat of Lane County, a

19 plurality of the voters chose the Mulligan claim, and under the Act the site for the county seat

20 had to be within one mile of the land claim receiving the most votes. The proposed location for

21 the new county courthouse is less than a mile from the original Mulligan claim, and within the 22 limits of the City of Eugene, the site chosen for the county seat. Therefore, the relocation and 23

21 24 For example: “SECTION 1. Be it enacted by the Legislative Assembly of the Territory of Oregon, That the qualified electors of the county of Lane be and they are hereby authorized to vote for the permanent location of [the] county- 25 seat of said county, at an election hereby authorized to be held therein on the First Monday in June, A.D. 1853, and the polls shall be held at the usual place of holding elections, which shall be conducted in the same manner as is provided by law for holding election.” (emphasis added). Page 18 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 18 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

construction of the new courthouse is a proper exercise of official authority, and the language 1 used in the 1856 deed has no legal force to limit that power. 2

3 "Seat of justice" does not mean “county courthouse.” The contemporary evidence shows

4 that both the County Commissioners (by their July 5, 1854 order) and Eugene Skinner (in his

5 July 5, 1855 letter) were familiar with the 1824 Act granting counties a preemptive right to claim

6 a quarter-section (160 acres) of land "for the establishment of seats of justice". See Chaney Decl.,

7 Ex. 3, page 26-27. Under that law, the entire 160 acres a county was entitled to take could be 8 sold, so long as the proceeds of the sale were "appropriated for the purpose of erecting public 9 buildings.” Id. While little is known otherwise about the parties' knowledge of contemporary 10 law, what is known is that both the County and Skinner were familiar with specifics of the 1824 11 Act, which used the terms "establishment of seats of justice" and placed little limitation upon the 12 purposes to which county land could be put. Since Skinner chose to use the same or similar terms 13 in the deed to the County as are used in the Act, such as "for the use and benefit of said County 14 of Lane for County seat purposes" and “to locate permanently the seat of justice," it seems clear 15

16 that intended meaning of those terms is consistent with the use of those terms in the Act.

17 Finally, past uses of the property, as discussed above, included selling off the greater part

18 of the conveyed forty acres as lots to private citizens, situating various buildings on the site, and

19 the first relocation of the courthouse building. The Stansbery Court found it a “significant

20 circumstance” of the parties’ intention not to limit the use of the property when the grantee in 21 that case was able to subsequently sell a portion of the land “without any protest or objection.” 22 Stansbery, 79 Or at 172. Similarly here, the Commissioners were able to use the land for 23 purposes other than situating a courthouse, including selling off various parcels, even prior to the 24 date of the deed, without protest or objection from the Skinners. This fact is supported by the 25 deed provided by Mary Packard (formerly Mary Skinner) in 1869 granting her permission for the

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relocation of the courthouse.22 See Hoehne Decl., Ex. 8. The various past uses of the property 1 further supports the conclusion that neither the Skinners nor the Board of Commissioners 2

3 intended to limit the uses of the donated property to the exclusive purpose of locating the Lane

4 County Courthouse.

5 The extrinsic evidence does not support an inference that the Skinners intended to convey

6 the property subject to its exclusive and perpetual use for county seat purposes. Even if the

7 Court finds the extrinsic evidence supports that the Skinners intended to convey some portion of 8 the forty acres for the location of the Lane County Courthouse, no specified portion was 9 identified for that purpose. Furthermore, nowhere within the extrinsic evidence is there a 10 reference that the property should be used “exclusively” and “perpetually” for county seat 11 purposes, pursuant to the fourth Stansbery category. Therefore, any language identified in the 12 extrinsic evidence referencing “county seat purposes,” like that in the recital of the deed, has no 13 legal effect to limit the use of the conveyed property. 14 3. The dedication of the public square does not prevent the use of the South Parcel of 15 the Butterfly Lot for a farmers market or other public use, nor construction of a city 16 hall on the North Parcel of the Butterfly Lot.

17 a. The dedication of the public square does not prevent development of a portion of the square for a farmers market or other public use. 18 "A 'dedication' is an appropriation of land by the owner for a public use." Dayton v. 19 Jordan, 279 Or.App 737, 746, 381 P3d 1031 (2016) (quoting Security & Invest. Co. v. Oregon 20 City, 161 Or 421, 432, 90 P2d 421 (1939)). The dedication may be express, or made by reference 21 to a designation on a plat. Id. at 748. Dedications "are to be interpreted by the court as any other 22

23 writing would be, and are to be construed as a whole in order that the intention of the dedicator

24 22 There is no record or discussion of this deed in either the County's or City's records, other than the deed itself, so 25 one can only speculate on the motivation for this—which may have been political in nature, to show the Skinners' support for the relocation, as the issue of extending the streets through the square was a matter of public debate at the time. See Walling, Albert G., Illustrated History of Lane County, 374 (1884). Page 20 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 20 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

may be ascertained, and every part of the instrument given effect." Security & Invest. Co., 161 1 Or at 430. Consequently, to make a determination regarding a dedication, the court must (1) find 2

3 that owner made a dedication, and (2) determine the owner's intent as to what public purpose or

4 purposes the land was to be used.

5 There is little question as to whether the Board of Commissioners intended to dedicate a

6 public square in Eugene. On December 7, 1854, the Board ordered "that the following ground be

7 and remain the Public Square in Eugene City," followed by a description of the area to be 8 dedicated: 9 Where as it appearing to the Board of County Commissioners within and for the 10 County of Lane at their Dec'r Term A.D. 1854, that there has heretofore been no Public Square located by any Record of said Court 11 The Board of County Commissioners therefore Order that the following ground be and remain the Public Square in Eugene City the present County Seat of said 12 County. To wit Beginning at the center of the South East quarter of Block No (10) Ten 13 according to the original Survey and Plat of Eugene City, thence west to the center of the South west quarter of Block No (11) Eleven, thence North to the 14 center of the north west quarter of Block No (8) Eight, thence East to the center of the north East quarter of Block No (9) Nine thence south to the place of beginning. 15

16 Lane Co. Comm. J., Bk. A, 89. (See Blommé Decl., Ex. 1)

17 However, as has been shown, the County did not hold, or claim to hold, actual title to the

18 property to be donated by Eugene and Mary Skinner, and could not have been the "owner" of the

19 property, nor could by this action thereby have made a dedication. In addition, the property

20 description contained in the order does not define a known area according to the recorded plat of 21 Eugene City. 22 Ample evidence exists that the County did use an area as a public square, and that area 23 was formally dedicated by the County Board in 1896. The 1896 Board order recited the entirety 24 of the 1854 dedication language, and added: 25

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Whereas, the description of the said public square is erroneous and should be 1 corrected to conform with the facts concerning said square. Therefore it is Ordered by the Board of County Commissioners, that C. M. 2 Collier, County Surveyor, make a survey of the said Public Square by beginning 3 at the center of the South East quarter of Block No. 12, thence West to the center of the South West quarter of Block No. 11, thence North to the North West 4 quarter of Block No. 8, thence East to the center of the North East quarter of Block No. 7, thence South to the center of the South East quarter of Block No. 12 5 and the place of beginning. That . . . the remaining portion of the Public Square be located by metes and 6 bounds by giving the exact size of said square in feet and inches, that a plat of said square be recorded in the records of the County Clerk's office. 7 Lane Co. Comm. J., Bk. 6, 593. (See Hoehne Decl., Ex. 8) 8

9 The County had clear ownership of the property after 1856, and the recorded survey

10 depicts the area now encompassing the park blocks and Morse Plaza. The question that remains

11 is what purposes are allowed under that dedication.

12 Dedication of a property or portion of a property to the public has the effect of limiting

13 its use to the purposes intended by the dedicator. ORS 92.150 ("Every donation or grant to the

14 public, including streets and alleys . . . shall be considered a general warranty to the donee or 15 grantee for the use of the donee or grantee for the purposes intended by the donor or grantor.") 16 The court is required to consider extrinsic evidence to determining the donor's intent. Dayton, 17 279 Or. App at 752 ("when other evidence of intent is available, it is the court's responsibility to 18 weigh that evidence"). So what evidence exists of that intent? 19 Evidence of the intent of the original Board's is limited by the record. While “public 20 square” neither was nor is a term defined in statute or contemporary dictionaries, there is 21 23 22 evidence of the uses other contemporary public squares were and are put to. Such squares were

23

24 23 No conventional printed reference has been identified that contains an actual definition or exposition of the term 25 "public square." Reaching further afield, Wikipedia equates "public square" with “town square,” which according to that website is "an open public space commonly found in the heart of a traditional town used for community gatherings," and goes on to say that most are "hardscapes suitable for open markets, music concerts, political rallies, Page 22 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 22 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

quite common in the centers of new towns, especially county seats, established in the American 1 West and Midwest in the mid-1800s. See generally Edward T. Price, The Central Courthouse 2

3 Square in the American County Seat, 58 GEOGRAPHICAL REV. 29 (Jan. 1968). Often, but not

4 always, these included the courthouse itself, but in addition "[t]he square itself long welcomed

5 informal marketing. Farmers sold their produce, horses and mules were traded, and itinerant

6 salesmen set up their stands." Id.at 56.

7 Clearer evidence of the parties' intent is the other uses to which the area was put: over 8 the ensuing three decades these included, on the northwest block alone, a courthouse, county jail, 9 city hall and firehouse, city jail, and sheds, and later an enclosed farmers market (Sanborn maps). 10 Not to mention the southerly portion of the parking structure built in the 1950s and, after the 11 closure of the original farmers market, portions of Eugene's Saturday Market, since 1970.24 The 12 court's attention is further drawn to the fact that, other than the 1890s litigation relating to the 13 extension of the streets through the square, the only contemporary record that exists of any 14 objection to the uses to which the square was put was the Board's action to order the removal of 15

16 the city hall and courthouse in 1908 and 1909, which they then followed by permitting

17 construction of the farmers market building a few years later, located on the same site the City

18 had occupied with its buildings. Chaney Decl., Ex. 4.

19 Taken together, the historic evidence does not suggest that the Board's intent in either

20 dedication was to limit the use of the area within the boundary of the public square to the sole 21 purpose of being a site for a courthouse, exclusive of other public uses. Moreover, the 22 subsequent use of the square for the farmers market of the 1920s and its successor, the Saturday 23

24 and other events." Wikipedia, Town square, https://en.wikipedia.org/wiki/Town_square (last visited October 11, 25 2017). 24 See Saturday Market, A Historical Perspective, https:/www/eugenesaturdaymarket.org/history-of-Saturday- market.html (last visited October 11, 2017). Page 23 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 23 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

Market, clearly indicate that the proposed use of the portion of the Butterfly Lot located within 1 the public square as a farmers market or for other public use is consistent with the dedication of 2

3 the public square.

4 b. The dedication of the public square does not apply to the North Parcel of the Butterfly Lot. 5 The North Parcel of the Butterfly Lot property consists of a number of properties 6 originally platted in 1855, some of which had been subsequently sold. The parcel includes the 7 four lots originally platted on the south side of 7th Avenue and sold to private parties in the 8 1850s, each of which had been increased in size by the addition of the 34 feet of roadway 9

10 vacated in 1899. These enlarged lots were repurchased by the County between 1952 and 1956, in

11 anticipation of construction of the butterfly parking lot. Those repurchased lots, when combined

12 with the 66 foot wide portion of roadway vacated by the County in 1956, constitute the North

13 Parcel. Blommé Decl. 2. See also Dingle Decl., Ex. 1 (Exhibits A-2 and A-3).

14 Since none of the North parcel is within the boundary of the public square, as dedicated,

15 no portion of the dedication applies to this parcel. 16 CONCLUSION 17 In 1856, Eugene F. and Mary Skinner deeded 40 acres of land to Lane County for the 18 purpose of establishing the County seat at Eugene City. The terms of that deed do not and were 19 not intended to restrict the use to which the donated land can be put or create a condition that 20 requires the County's courthouse be located in perpetuity somewhere within that 40 acre parcel. 21 In 1896, the County's Board of Commissioners dedicated the area comprising what was 22

23 then the four park blocks and the streets between them as a public square, echoing the language

24 of the earlier Board that, in 1854, had attempted to dedicate the same area as a public square.

25 Neither dedication clarified the purpose or limitations of the public square and the actual uses

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since the mid-1850s have been diverse and have changed over time. The common themes 1 discernable among the uses—courthouse, jails, parks, fire station, farmers market, sheds, parking 2

3 structures—are of (1) the public square is a place to locate buildings owned by the public, and

4 (2) that areas of the public square not containing buildings are open to and available for general

5 public use.

6 Given the actual historic and documentary record, it is not possible to reconcile the

7 opinions expressed by the District Attorney in 1955 (that the area had been set aside "as a park 8 and recreational area"), or by the Presiding Judge of the Lane County Circuit Court in 2007 (that 9 sale of the northwest corner of the square to the City for construction of a city hall "would 10 violate the deed restrictions" in the original Skinner deed). An exhaustive examination of the 11 historic record and the legal documents available turns up no evidence that the dedication of the 12 public square was intended to be limited to a park or recreation area. And, as has been shown, 13 the Skinner deed contains no language creating any restriction on the use or alienability of the 40 14 acres deeded to the County. 15

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Page 25 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 25 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803

For the reasons stated above, petitioners Lane County, the City of Eugene, and the 1 Urban Renewal Agency of the City of Eugene respectfully request that the court issue a written 2

3 opinion and judgment pursuant to ORS 33.710 and 33.720 that there is no restriction that limits

4 the use of the northern parcel of the Butterfly Lot for construction of a city hall or other use,

5 prevents locating a farmers market or public space on the southern parcel of that Lot, or prevents

6 locating the county courthouse on the Former City Hall Lot.

7 DATED this 27th day of October, 2017.

8 LANE COUNTY OFFICE OF LEGAL COUNSEL 9

10 By: /s/ Stephen E. Dingle Stephen E. Dingle, OSB #842077 11 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East Eighth Avenue 12 Eugene, Oregon 97401 (541) 682-4442 phone 13 (541) 682-3803 fax [email protected] 14 Of Attorneys for Lane County

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Page 26 – LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 26 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803 CERTIFICATE OF SERVICE 1

2 I, Stephen E. Dingle, hereby certify that I am the attorney for the Lane County herein; that I served the foregoing MEMORANDUM IN SUPPORT OF LANE 3 COUNTY'S MOTION FOR SUMMARY JUDGMENT on the 27th day of October, 2017, as follows 4

5 Via First Class Mail, Postage Paid

6 Via Personal Delivery 7 X Via Electronic Service to counsel's email on record with OJD/Odyssey 8 E-File and Serve.

9 Via Email

10 John G. Cox Ben Miller Hutchinson Cox City of Eugene 11 940 Willamette St., Ste. 400 City Attorney's Office

12 Eugene, OR 97401 125 East 8th Avenue Email: [email protected] Eugene, Oregon 97401 13 Email: ben.j [email protected] Intervenor 14 Of Attorneys for Petitioners City of Eugene and Urban Renewal Agency of 15 the City of Eugene Trial Attorney: Ben Miller 16

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18 By: /s/ Stephen E. Dingle Stephen E. Dingle, OSB #842077 19 LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East Eighth Avenue 20 Eugene, Oregon 97401 (541) 682-4442 phone 21 (541) 682-3803 fax Stephen. dingle@co .lane . or.us 22 Of Attorneys for Lane County

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LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442; Fax 541.682.3803