A Declaration That No Deed Restriction Nor of Properties In

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 DECLARATION OF JAMES CHANEY 7 Dedication on That Piece of Property Known IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT as the Butterfly Lot Would Prevent the 8 Construction of a City Hall, Farmers Market, 9 or Public Space on That Lot, Nor Would Prevent Construction of a County Courthouse 1 0 on That Piece of Property Known as the Former City Hall Lot 11 I, James A. Chaney, do hereby state as follows: 12

1 . I am an Assistant County Counsel for the Lane County Office of Legal Counsel, 13

and I make this Declaration in support of Lane County's Motion for Summary Judgment. 14

15 2. The City of Eugene, Lane County, and the Urban Renewal Agency of the City of

16 Eugene entered into a purchase and sale agreement on August 31, 2107 for the sale and exchange

17 of properties in downtown Eugene.

18 3. The County property that is being sold under the purchase and sale agreement

19 consists of two parcels of land which, taken together, constitute a half-block property bounded

20 on the north and south by 7th and 8th Avenues and on the east and west by Oak Street and West

21 Park Street, and known locally as the "Butterfly Lot." 22 4. I researched the issues of potential restrictions or limitations on the title to the 23 County properties to be sold to the the City and Urban Renewal Agency under the purchase and 24 agreement that could restrict the use of that property for the purposes intended, or might prevent 25

Page 1 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telenhone: 541.682.4442: Fax 541.682.3803 the County from constructing a courthouse on the site of the former Eugene city hall. In the 1 2 course of that research I located a number of historic documents and public records, and base the

^ subsequent statements in this declaration upon my review of those documents.

4 5. I prepared a sequential list (a "timeline") of all events for which I have

5 documentation that have potential relevance to interpretation of the Skinner deed and possible

6 restrictions on the Butterfly Lot. A copy of that timeline is attached to this declaration as Exhibit

^ " 1 " and by this reference incorporated herein.

8 6. A Congressional Act dated May 26, 1824, granted counties of each state and

9 . . . territory the right of pre-emption to one-quarter section of land "for the establishment of seats of

10 justice therein," provided that "the proceeds of the sale of each said quarter sections shall be 11 appropriated for the purpose of erecting public buildings." A copy of the Congressional Act is 12 attached as Exhibit "2" and by this reference incorporated herein. 13 7. Lane County was established in 1851 by the Oregon Territorial Legislature. 14

8. Eugene F. Skinner filed a claim for 640 acres of land with the Office of the 15

16 Surveyor General of Oregon on April 27, 1853. I obtained from the U.S. Archives' Seattle

17 Regional Office a certified copy of the entire claim filed by Skinner on behalf of himself and his

18 wife, the original of which is in the custody of the Lane County Historical Museum. A complete

19 copy of that claim file is attached as Exhibit "3" and by this reference incorporated herein.

20 9. An Act of the Oregon Territorial Legislature passed in January 1 853 established a

21 method for the selection of a county seat for Lane County. Based on that law, the Board of

22 Commissioners of Lane County (the Board) selected Eugene City as the location for the county 23 seat on July 6, 1853. 24 10. In recognition of promised donations of 40 acres of land from each of two 25

Page 2 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442: Fax 541.682.3803 couples, Eugene and Mary Skinner and Charnel and Martha Mulligan, the Lane County Board of 1 2 Commissioners dedicated an area within the donated land as a "Public Square" on December 7,

2 1854. However, but the property description contained in the order does not correspond to the

4 location of the Square on the plat describe any particular parcel with certainty.

5 11. On April 12, 1856, the Board ordered that the Skinners' $25,000 bond

6 guaranteeing their donation of 40 acres of land be recorded.

7 12. On July 12, 1856 the Board accepted a deed from the Skinners, and a deed from

8 the Skinners granting 40 acres of land to the County was dated and recorded the same day.

9 13. On August 29, 1860, the United States Surveyor General's Office issued a patent 10 to Eugene and Mary Skinner for their land claim. 11 14. A deed was recorded on March 14, 1862 from the Skinners granting the same 40 12 acres of land to the County as the 1856 deed. That second deed, as recorded, bears the date May 13

17, 1855. 14

15. In 1883 or 1884, the City of Eugene constructed a city hall-fire station on the 15

16 southwest corner of the Butterfly Lot within the public square.

17 16. Commencing in 1884, with periodic updates, the Sanborn Map Company

18 prepared fire insurance maps for Eugene, Oregon detailing the location and uses of all buildings

19 within the City for fire insurance purposes. A copy of all five Sanborn Fire Insurance Maps

20 issued from 1884 through 1925 showing the uses of the Butterfly Lot property is attached as

21 Exhibit "4", and by this reference incorporated herein.

22 17. In 1895, Lane County constructed a new county jail on the southeast corner of the 23 Butterfly Lot property within the public square, replacing earlier jails that had occupied the same 24 site since 1853. 25

Page 3 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682,4442: Fax 541.682.3803 18. In 1896, the Board of County Commissioners formally dedicated as a "public 1 2 square" the area used for that purpose since 1854, and ordered the dedication surveyed and

2 recorded on March 21, 1 896.

4 19. A group of plaintiffs led by Joseph Davis sued the City of Eugene and the Lane

5 County Board of Commissioners in Lane County Circuit Court in 1 897, seeking to compel the

6 removal of portions of 8th Avenue and Oak Street to restore the public square to an undivided

7 condition. The suit dismissed in 1 899, and the Court's records related to the action are omitted in

8 the Court's microfilm archive. However, the Lane County Historical Museum retains an original

9 ...... copy of the City of Eugene's litigation file, including a copy of the plaintiffs' revised complaint 10 and sworn depositions taken in the case. 11 20. In 1898 Lane County constructed a new county courthouse on the northeast 12 corner of 8th Avenue and Oak Street, within the public square at the present location of the 13 Morse Plaza. 14

21. The Board vacated the outer 34' of the dedicated road around the public square on 15

16 October 10, 1899, and sold the vacated portion of the roadway to the adjacent property owners.

17 22. The Board ordered on October 20, 1908, that an action be commenced against the

18 City of Eugene to force the City to remove its city hall-fire station and city jail from the

19 southwest portion of the Butterfly Lot property.

20 23. The Board renewed its October 20, 1908 order regarding removal of the City

21 structures on October 10, 1909.

22 24. Lane County has retained continuous ownership of the Butterfly Lot property 23 since the County obtained title from the Skinners, with the exception of four lots and a portion of 24 vacated street right-of-way that were sold by the County to third parties and which, taken 25

Page 4 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telenhone: 541.682.4442: Fax 541.682.3803 together, constitute the northern portion of the Butterfly Lot. 1

25. District Attorney Eugene C. Venn submitted a formal opinion memorandum to 2

3 the Lane County Board of Commissioners dated November 8, 1954 giving his opinion on the

4 legality of selling one of the southerly park blocks to the City of Eugene as a site for a city

5 library. A copy of that memorandum is attached as Exhibit "5" and by this reference incorporated

6 herein.

7 26. The Board vacated the remaining 66 foot width of North Park Street right-of-way

8 on December 26, 1958, the portion of which between Oak Street and West Park Street is now

9 incorporated into the Butterfly Lot.

10 27. Lane County had a parking structure built on the Butterfly Lot, completed in 11 1959. 12 28. Lane County and City of Eugene staff held meetings in 2006 and 2007 to explore 13 the possibility of selling the Butterfly Lot to the City of Eugene as a site for construction of a 14

new city hall. 15

29. At the request of Lane County Circuit Court Presiding Judge Mary Ann Bearden, 16

17 the Court Administrator sent a letter addressed to the Lane County Commissioners, County

18 Administrator, City of Eugene Mayor, and the City Manager dated May 25, 2007, expressing the

19 Presiding Judge's opinion that the proposed sale was prohibited by a restriction contained in the

20 County's deed to the property from the Skinners. A copy of that letter is attached as Exhibit "6"

21 and by this reference incorporated herein.

22 30. The recording of both deeds from the Skinners, both in 1856 and 1862, was 23 handwritten in the Lane County Deed Books. I prepared a transcription of each deed, from 1856 24 and 1862, respectively. A copy of those transcriptions are attached as Exhibits "7" and 8, 25

Page 5 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 9740 1 Telenhone: 541.682.4442: Fax 541.682.3803 respectively, and by this reference incorporated herein. 1

I HEREBY DECLARE THAT THE ABOVE STATEMENTS ARE TRUE TO THE 2 BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND THIS 3 DECLARATION IS MADE FOR USE AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY. 4 DATED this 26th day of October, 2017. 5

6 By: 7 James A. Chaney, OSB #1 13534

Page 6 - DECLARATION OF JAMES CHANEY IN SUPPORT OF LANE COUNTY'S MOTION FOR SUMMARY JUDGMENT LANE COUNTY OFFICE OF LEGAL COUNSEL 125 East 8th Avenue Eugene, Oregon 97401 Telephone: 541.682.4442: Fax 541.682.3803 Declaration of James A. Chaney, Exhibit 1, Page 1 of 3

TIME LINE Year Date Description PERIOD UP TO THE CREATION OF LANE COUNTY (1824 – 1851) 1824 5/26 County seat act passed by Congress 1843 5/2 American and British settlers at Champoeg vote to form provisional government 7/5 Provisional government constitution adopted with provisions regarding establishment of land claims 1846 5/29 Treaty with Great Britain granting U.S. sovereignty over Oregon territory south of 49th parallel ratified 1847 5/29 Skinners commence continouous settlement 1848 8/14 Congress creates Oregon Territory, invalidates existing real property laws 1849 3/3 Territorial government succeeds Provisional Government 1850 9/27 President signs Donation Land Act, creating office of Surveyor-General for Oregon and establishing land claim criteria 1851 1/28 Territorial legislature creates Lane County (extending from about Harrisburg, Oregon to Rawlins, Wyoming) 5/5 U.S. Surveyor General's office opened in Oregon City 6/4 Initial survey point established (the Willamette Stone) PERIOD FROM FIRST COUNTY BOARD MEETING TO RECORDING OF LAST SKINNER DEED (1852 – 1864) 1852 9/8 First meeting of Board of County Commissioners; order "all courts for Lane County be held at Eugene 1853 1/12 Bill to establish location of Lane County seat passed 4/27 Skinner files claim with Surveyor General's office 6/5 Election for location of county seat 6/14 Mulligan bond recorded 7/4 Board orders location county seat of Lane County (presumably on Mulligan claim) 7/5 Board orders plat of town from the Skinner and Mulligan donations, order posting of notices for sales of lots, establish Eugene City to be seat of justice from this date 7/6 Board orders location of county seat on Mulligan donation 8/23 Board accepts Blair and Potter offer to construct Clerk's office, establish terms for sales of bonds for lots 9/6 Board reimburses Blair for stakes for laying out town of Eugene City, authorize executing bonds for sold lots ---- Clerk's office completed, originally located near 10th Ave. & Willamette St. 1854 7/5 Board orders selection of an additional 80 acres of land under authority of May 6, 1824 law 7/8 Board rescinds 7/5/1854 land selection, orders Clerk to prepare bonds for Mulligan and Skinner donations 8/1 Board considers titles to lots and matters relating to county seat, orders Clerk to tender bonds for donations 9/6 Clerk reports bonds tendered, Board directs Clerk to prepare sale bonds for execution after Skinner bond received 12/7 Board dedicates public square 12/8 Board authorizes Clerk to arrange for exchange of lots due to relocation of square 12/9 Reported to Board that Mulligan has demanded return of his bond, Board directs Clerk to correspond with land office in Oregon City "to secure County its rights" 1855 1/15 Board calls for courthouse designs 4/6 Board accepts bid for courthouse, orders contract, Skinner approved to exchange a deed for his bond 7/2 Clerk's record of lot swaps during recess of Board is recorded 7/5 Skinner writes letter to Surveyor General asking explanation of how County can claim 160 acres of land 7/7 Board orders dedication of 100' wide roadway around public square

{00144404;1} Declaration of James A. Chaney, Exhibit 1, Page 2 of 3 Year Date Description 10/6 Skinner claim file is complete with last proof of claim 11/21 Mulligan claim filed ---- First County courthouse completed in center of public square 1856 2/11 Mulligan donation deed recorded 4/11 Board orders that Skinners' bond guaranteeing donation be recorded 4/12 Skinner bond recorded, Board orders Patterson to prepare correct plat of Eugene City, Clerk to deliver deeds to sold lots 5/5 County Clerk Brattain's plat of Eugene City is filed 7/11 Brattain reappointed as agent for lot sales 7/12 Board orders Skinner deed accepted, Skinner allowed to "lift his bond", and that Skinner deed be recorded Skinner deed recorded 1858 ---- County jail is erected on square 1860 3/27 Skinner claim certificate issued 8/29 Skinner patent issued 1862 3/14 Second Skinner deed recorded 1864 12/16 Eugene Skinner dies PERIOD FROM CITY REQUEST TO OPEN STREETS TO CITY LEASE OF SITE FOR FIRE STATION-CITY HALL (1865 – 1885) 1865 9/17 Eugene city council resolution to ask County to move courthouse to open streets 1869 3/18 Mulligan patent issued 7/12 Packard deed recorded 9/10 Board order to allow removal of courthouse from center of square ---- Courthouse removed from center of public square (sometime after 9/10) 1872 7/5 Board approves lease to City for fire hall 1873 7/-- Oregon Supreme Court decides Whitlow v. Reese, invalidating 1824 county seat law 1878 9/11 County and City agree to lease of outer 34' of road around public square 1882 6/12 County and City agree to 50-year lease of land for city hall 1885 ---- Eugene city hall and fire station completed on northwest park block (south Butterfly parcel) COUNTY'S SUIT TO QUIET TITLE TO 34' OF THE PERIMETER ROAD THROUGH COMPLETION OF THE 1898 COURTHOUSE AND VACATION OF THE 34' (1886 – 1899) 1895 5/-- Board orders suit to quiet title on streets through square 1896 3/21 County dedicates public square in correct location, orders surveyed and recorded 6/8 City authorizes funds to defend against quiet title action 1897 6/14 Board states City and County have reach agreement, orders suit dismissed 6/-- Quiet title action dismissed 9/21 Davis et al sue County and City to remove streets across square 9/28 City council agrees to joint defense of Davis suit ---- Old courthouse temporarily relocated, County begins construction of new courthouse on northeast park block 1898 ---- New County courthouse completed

{00144404;1} Declaration of James A. Chaney, Exhibit 1, Page 3 of 3 Year Date Description 1899 ---- Davis et al action dismissed 6/18 City files order for costs from plaintiff in Davis 10/10 Outer 34' of roadway around public square vacated, sale of vacated portion to adjacent property owners REMOVAL OF CITY BUILDINGS FROM NORTHWEST PARK BLOCK (1908 – 1914) 1908 9/4 Commissioners' first order that city hall be removed 10/5 City council receives notice from County to vacate city hall site 1909 10/20 Commissioners' second order that city hall be removed 1914 ---- Eugene city hall relocated to 11th Avenue & Willamette St. PLANNING AND CONSTRUCTION OF THE 1950s COURTHOUSE AND BUTTERFLY LOT TO THE PRESENT (1952 – 2017) 1952 1/5 County purchases east half of original Lot 2 between 7th Ave. and N. Park St. 4/3 County purchases east half of original Lot 1 between 7th Ave. and N. Park St. 4/24 County purchases west half of original Lot 1 between 7th Ave. and N. Park St. 1953 7/23 County purchases west half of original Lot 2 between 7th Ave. and N. Park St. 1954 11/8 Letter from District Attorney Venn to Board stating that park blocks were dedicated as park and recreation area 1958 12/26 North Park Street vacated 1959 ---- New county courthouse completed immediately north of existing 1898 courthouse, outside public square 2006 ---- City and County staff meet to discuss possible sale of butterfly lot to City as site for new city hall 2007 5/25 Letter from Lane County Circuit Court to City and County stating city hall cannot be placed on butterfly lot 2017 8/31 Lane County and City of Eugene execute purchase and sale agreement for exchange of downtown properties

{00144404;1} 'HFODUDWLRQRI-DPHV$&KDQH\([KLELW3DJHRIDeclaration of James A. Chaney, Exhibit 2 - Page 1of1

SO EIGHTEENTH CONGRESS. Ses«. I. Ch. 169, 170, 171. 1824.

Statute I. May 26, 1824. Chap. CLX1X.—An Act granting to the counties or parishes of each state and territory of the United Statu, in which the public lande arc situated, the right ofpre-emption to quarter sections of land,for seals ofjustice within the tame. The right of Be it enacted by the Senate and House of Representatives of the United pre-emption to States of America, in Congress assembled, That there be granted to the tion of^land860" several counties or parishes of each slate and territory of the United granted to the States, where there are public lands, at the minimum price for which eeverai counties public lands of the United States are sold, the right of pre-emption to and6 territory6of one quarter section of land, in each of the counties or parishes, of said the United states and territories, in trust for said counties or parishes, respectively, States, where for the establishment of seats of justice therein : Provided, The pro- lie6lands6 for ceeds of the sale of each of said quarter sections shall be appropriated certain pur- for the purpose of erecting public buildings in the county or parish for poses, which it is located, after deducting therefrom the amount originally paid Proviso.' for the same : And provided, further. That the seat of justice for said counties or parishes, respectively, shall be fixed previously to a sale of the adjoining lands within the county or parish for which the same is located. Parts of other Sec. 2. And be it further enacted, That so much of such acts, here acts repealed. tofore passed, granting to statesrights ofpre-emption, for county or parish purposes, as require said seats of justice to be continued at or near the centre of each of said counties or parishes, be, and the same is hereby, repealed. Approved, May 26, 1824.

Statute I.

May 26, 1824. Chap. CLXX.—An Act to alter the judicial districts of Pennsylvania, and for ———— other purposes, (a)

Carte in coun Be it enacted by the Senate and House of Representatives of the United ties to compose States of America, a part of the in Congress assembled, That the following counties in western, in the state of Pennsylvania shall cease to be a part of the eastern judicial stead of the district of Pennsylvania, and shall be added to, and form a part of, the west eastern judicial ern district; that is to say: Susquehanna, district of Penn Bradford, Tioga, Union, Nor sylvania. thumberland, Columbia, Luzerne, and Lycoming : and that, besides the terms of the district court directed by law to be held at Pittsburg, for the western district, the judge of the. said western district shall hold two Time and terms in every year, at W illiam's Port, in the county of Lycoming, which couns°ffa0ldinS commence on the first Mondays of the months of June and Octo ber, in each and every year, beginning in October next, and be continued and adjourned from time to time, as the court may deem expedient for the despatch of the business thereof. Approved, May 26, 1824.

Statute I.

May 26, 1824. Chap. CLXXI.—An Act to establish an additional land office in the state cf Missouri. Act of Feb. Be it enacted by the Senate and House 17, 1818, ch. 12. of Representatives of the United , Public lands States of America, in Congress assembled, That so much of the public to be formed lands of the United States included in the present district of St. Louis, district1"5" 'and the state of Missouri,as lies within the following boundaries, to wit: Act of March Beginning on the Mississippi river, between townships numbered forty- 3, 1R23, ch. 66. eight and forty-nine, thence west to the range line between ranges ten 1826 'ch*^4' a!1<' eleven i (hence north to the township line ' * * bered fifty-two and fifty-three; thence west tobetweenthe rangetownshipsline betweennum

(a) See noteB to the act of May 15, 1820, ch. 111. DeclarationDeclaration of James A. Chaney, ExhibitExhibit 3 - PagePage 11 of 38

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feci'ngp protvit to the mtiifatiion of the Rftjutcr and Receiver of the hand Ojffcc for the "Willamette J)i*tHcf' in Oregon Territory, thefact that tueh tetdemmt teas commenced on the /%/^i —> , V

v ^ e2*teZf 2^.— four yeart prior to the date hereof; and having, pursuant to the rcgutremmU of the Ad* aforesaid, established by iZfZ,9 disinterested vdtnettcN, thefact ofcontinued rctidenc* anJ mdUuaHbn, required by y the 4th Section of said Act : Nose, therefore, BE IT KNO WN, that see, BmRTMAJ* JEHHWOS, Better, and A. LaW- gpci LoyhJOT, IktoeiTPT, of the Land Office aforesaid, do hereby certify to the OonuniwioraOT of thu GelHT*l Ikwl Office the facta aforesaid, accompanied by the evidence thereof, in order that a patent may be issued to said claimant for the tract ofland above described : PROVIDED the said Commissioner shallfind no valid objection thereto. / OIV&N UNDER OUR HANDS a} Use Land Office, in Oregon City, mki s&S S/tT^S day of ^ l&ZzZt? yz 0 JBL I.MxrxxKNpt. ... REGISTER.