in the circuit court of the state of oregon for lane …

Page i –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL

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

In the Matter of: A Declaration That No Deed Restriction nor Dedication on That Piece of Property Known as the Butterfly Lot Would Prevent the Construction of a City Hall, Farmers Market, or Public Space on That Lot, Nor Would Prevent Construction of a County Courthouse on That Piece of Property Known as the Former City Hall Lot

Case No.: 17-CV-37767 MEMORANDUM IN SUPPORT OF LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 1

FACTUAL BACKGROUND .................................................................................................... 2

1. The Skinner Donation and Establishment of the County Seat and Public Square ......... 2

2. The Public Square and Courthouse Since 1856 ............................................................. 5

3. The legal assertions since the 1950s .............................................................................. 7

ARGUMENT ............................................................................................................................. 8

1. The County's title to the Butterfly Lot derives from the Skinner deed recorded in 1856 .................................................................................. 8

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 at the time of the 1856 deed ........................................................ 8

b. The 1862-recorded deed is void as to the 1856 deed under Oregon recording law ...................................................................................................... 9

Page ii –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL


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2. The 1856 deed does not contain restrictions that limit the County’s use of the property or require that the courthouse be perpetually located upon the deeded land ................................................................................................................................. 11

a. The first and second Stansbery categories are not applicable to this case ......... 12

b. The third Stansbery category is not applicable to this case ............................... 14

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

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

e. The extrinsic evidence does not support a restriction that limits the use of the property ........................................................................................................ 17

3. The dedication of the public square does not prevent the use of the South 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

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 .......................... 20

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

CONCLUSION .......................................................................................................................... 24

TABLE OF AUTHORITIES

Cases City of Klamath Falls v. Bell, 7 Or App 330, 490 P2d 515 (1971) ............................................ 12 Clark v. Jones, 173 Or 106, 144 P2d 498 (1943) ....................................................................... 12 Davis et al v. Lane County and City of Eugene, Lane Co. Cir. Ct. Case No. 4150 (1897) ....... 6 Dayton v. Jordan, 279 Or.App 737, 381 P3d 1031 (2016) ................................................... 20, 22 Dolph v. Barney, 5 Or 191 (1874), affirmed 97 US 652, 24 Led 1063 (1878) ..................... 8, 9 Eugene School Dist. No. 4J v. City of Eugene, 2007 WL 5813753 (Or Cir

April 2, 2007) ..................................................................................................................... 14, 15 Lane County v. City of Eugene, Lane Co. Cir. Ct. Case No. 3855 (1896) ................................. 6 Meade v. Ballard, 74 US 290, 19 Led 190 (1868) ................................................................ 16, 17

Page iii –TABLE OF CONTENTS LANE COUNTY OFFICE OF LEGAL COUNSEL


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Murdoch v. Klamath County Court, 62 Or 483, 126 P 6 (1912) ............................................... 18 Security & Invest. Co. v. Oregon City, 161 Or 421, 90 P2d 421 (1939)............................... 20, 21 Stansbery v. First Methodist Episcopal Church, 79 Or 155, 154 P 887 (1916) ...............passim Stark v. Starrs, 73 US 402, 418 (1867) ...................................................................................... 8 Ward v. Klamath County, 108 Or 574, 218 P 927 (1923) .......................................................... 13 Wirostek v. Johnson, 266 Or 72, 511 P2d 373 (1973) ............................................................... 17 Statutes ORS 33.710 ................................................................................................................................ 25 ORS 33.720 ................................................................................................................................ 25 ORS 92.150 ................................................................................................................................ 22 ORS 93.120 ................................................................................................................................ 13 ORS 93.640 ................................................................................................................................ 9 ORS 275.330 .............................................................................................................................. 7 Other Authorities Act of Congress, 18 Cong. Ch. 169 (1824) ................................................................................ 3 Act to Establish the Territorial Government of Oregon, 9 Stat. 323-331 (1848) ...................... 2 Champ Clark Vaughan, History of the General Land Office in Oregon 45 (U.S. Department of the Interior, Bureau of Land Management) ....................................................... 8 City of Eugene, History of Eugene City Hall, https://www.eugene-or.gov/2912/History, (last visited October 23, 2017) ................................................................ 6 Donation Land Act, 9 Stat. 496 (1850) ................................................................................. 2, 8, 9 General Laws of Oregon, Ch. 7, Title I §26 (1854) (effective May 1, 1855) Regular Session 16-17 (Bush 1853) ...................................................................................... 10, 14 Special Laws and Joint Resolutions of the Legislative Assembly of the Territory of Oregon, 4th Regular Session 16-17 (Bush 1853) ............................................................. 2, 18

LANE COUNTY’S MOTION FOR SUMMARY JUDGMENT - Page 1 of 26 LANE COUNTY OFFICE OF LEGAL COUNSEL


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INTRODUCTION

This matter concerns a fully-executed purchase and sale agreement for two parcels of

land in downtown Eugene: the Former City Hall Lot and the Butterfly Lot. Petitioners seek a

declaration that there is no restriction on selling the properties or using the Butterfly Lot to

construct a city hall or for certain other uses, nor would prevent construction of a county

courthouse on the Former City Hall Lot. Pursuant to that purchase and sale agreement, the City

of Eugene is preparing to build a new city hall and farmers market on the property to be obtained

from the County (the "Butterfly Lot"), and the County has begun planning for construction of a

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

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

$100 million dollars in public funds.

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

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

and Mary Skinner. The Former City Hall Lot being acquired by the County is outside that

Skinner land donation. In the past, the County has been presented with legal opinions asserting

that either terms in the original deed donating the land to the County, or the County's subsequent

dedication of a portion of the Skinner donation as a public square, had created restrictions that

legally prohibit both the planned sale and exchange of lots and the planned construction of the

new city hall, farmers market, and county courthouse projects.

The City, County, and Urban Renewal Agency contend that neither the Skinners' deed

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

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

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,

and Urban Renewal Agency seek a judicial determination that no such restrictions exist.

FACTUAL BACKGROUND

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

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

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

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

Ex. 3. That 1848 Act explicitly voided any existing land rights claimed by settlers2, so it was not

until the passage of the Donation Land Act in 1850 (9 Stat. 496 (1850)) that a law was in place to

permit settlers in the Oregon Territory to acquire title to land they had claimed. Under the 1850

Act, qualified persons who had settled prior to December 1 of that year could gain title to their

claimed land—but not until the land had been surveyed, lived on for a minimum number of

years, and all notifications and proofs required under the Act had been filed with the Surveyor

General for the Territory of Oregon.3

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

subsequent 1853 law4 establishing a method to choose a location for the county seat, the new

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

1 An Act to Establish the Territorial Government of Oregon, 9 Stat. 323-331 (1848). 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. 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 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, 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; 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, 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).



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during its July Term, 1853. Chaney Decl., 2. In the same Term, and with reference to promised

donations of land from both the Skinners and another settler couple, Charnel and Mary Mulligan,

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

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

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

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

Comm. J., Bk. A, 31-32.

On July 5, 1854, the Board took action to claim an additional 80 acres of land adjacent

to the proposed Skinner and Mulligan donations of 40 acres each:

Ordered that we now proceed to select that Quartersection land to which the 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 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. Skinner and Charnel Mulligan to the county for county purposes.5 Lane Co. Comm. J., Bk. A 61. (See Hoehne Decl., Ex. 2).

Though the Board rescinded that action a few days later, the claim of entitlement to pre-

emptively take additional land would not terminate until the settlers who claimed the land

received full title to their land.6 At the same meeting where the Board rescinded its claim to an

additional 80 acres of land, the Board directed that bonds be prepared for execution by both the

Mulligans and the Skinners to guarantee their donations to Lane County. Lane Co. Comm. J.,

Bk. A 80-81. (See Hoehne Decl., Ex. 3).

5 18 Cong. Ch. 169. Chaney Decl., Ex. 2. 6 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:

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 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.



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With reference to the Mulligans' and Skinners' promises, the Board acted to set aside a

public square in December, 1854, "in Eugene City, the present County Seat of Said County"7,

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

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

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

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

description of the square used in the order did not make sense, compared to the corresponding

plat that was filed, so it was not until 1896 that the Board took action to formally dedicate the

square in its present location. Blommé Decl., 1, Ex. 2.

No formal record exists of the promised Skinner land donation until, upon order of the

Board, the bond received from the Skinners to guarantee their donation was recorded. Lane Co.

Comm J., Bk. A 162-163. (See Hoehne Decl., Ex. 4) This was followed by the recording of the

original plat of Eugene City on May 5, 1856 (the "Brattain Plat"). Blommé Decl., Ex. 2. Three

months later, on July 12, 1856, the Board received and approved a deed from the Skinners,

which is recorded in the Commissioners' Journal as follows:

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 and said Skinner be allowed to lift his bond. Lane Co. Comm. J., Bk. A 188. (See Hoehne Decl., Ex. 5)

The Skinners' deed was recorded in the County's deed book the same day, July 12, 1856.

Blommé Decl., Ex. 3. The Skinners were issued a patent dated August 29, 1860 from the United

States General Land Office granting them title to their claimed lands. Chaney Decl., 3. Nearly

six years later, another deed from the Skinners to the County for the same property, dated May

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.



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

Ex. 4.

2. The Public Square and Courthouse Since 1856.

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

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

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

1869, a group of citizens requested and received permission from the County's Board to relocate

the courthouse to allow the affected streets to be extended through the square. Lane Co. Comm.

J., Bk. C, 79-80. The courthouse was relocated to the northeast corner of the public square, and

8th and Oak were extended across the square later that year. In a companion action, Mary

Packard, widow of Eugene Skinner (since remarried), executed a deed to the County granting her

permission for the relocation of the courthouse, and that deed was recorded July 12, 18699. See

Hoehne Decl., Ex. 6.

The extension of the streets divided the square into quadrants, the northwest one of

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

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

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

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

Chaney Decl., Ex. 4. During the same period, the County in 1899 reduced the width of the 100

foot roadway around the square to the same 66 foot width of the other downtown streets; the

8 A search of historic documents, deed records, and Commissioners' Journals produces no other contemporary record 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 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.



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

554.

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

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

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

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

and ordered a new dedication and survey of the public square in its actual location in 1896. Lane

Co. Comm. J., Bk. 6, 593 (See Hoehne Decl., Ex. 8) In the same year the County filed a lawsuit

against the City of Eugene, seeking to confirm the County's title to the streets across the square.

Lane County v. City of Eugene, Lane Co. Cir. Ct. Case No. 3855 (1896). The County dismissed

that action the following year. Id. Apparently prompted by the dismissal of that claim, a group of

private parties sued both the County and the City in 1897, a suit which sought to have the streets

across the square removed. Davis et al v. Lane County and City of Eugene, Lane Co. Cir. Ct.

Case No. 4150 (1897). That action, too, was ultimately dismissed. Id. Thus, the streets remained,

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

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

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

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

Lane Co. Comm. J., Bk.10, 326. That demand was repeated the following year, and the City

ultimately relocated both functions to a new city hall at 11th Avenue and Willamette Street in

1914.11 Lane Co. Comm. J., Bk. 10, 562. In the mid-1950s, having purchased all the lots directly

north of the northwest block, the County vacated the remaining 66 feet of roadway between

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).



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those lots and the block, and constructed the "butterfly"12 parking structure on the combined site.

Lane Co. Comm. J., microfilmed on Co. Comm. Rec., Reel 7 (1959). At about the same time, the

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

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

3. The legal assertions since the 1950s. In both the 1950s and the 2000s, the County received legal opinions stating that the sale

of any part of the public square would be illegal, or that the Butterfly Lot area must be used for

courthouse-related purposes.

The first opinion was given in the mid-1950s, when the County considered selling one

of the southerly park blocks to the City of Eugene for a library. In a 1954 opinion, the Lane

County District Attorney concluded that "It appears that, on December 7, 1954 [sic], the county

court, consisting of three commissioners, did cause an order to be entered setting aside the

particular area as a park and recreational area," with the result that, under ORS 275.330 as

amended in 1951, the land in the public square "may not be alienated by county court for any

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

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

Ex. 5.

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

entire Butterfly Lot to the City of Eugene as a site for a new city hall. The May 25, 2007 letter

received from the Lane County Circuit Court made reference to language contained in the 1862-

recorded Skinner deed, concluding that "It is the position of Presiding Judge Mary Ann Bearden

that the proposed sale would violate the deed restrictions," and went on to state that the Court

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.



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"has employed counsel, and will take any necessary legal steps to ensure that the deed

restrictions be enforced." Chaney Decl., Ex. 6.

ARGUMENT

1. The County's title to the Butterfly Lot derives from the Skinner deed recorded in 1856.

Only one of the deeds recorded in the name of Eugene and Mary Skinner could have

granted title to the County for the 40 acres of land donated by them. Both deeds are for the same

parcel of land, from the same grantors, to the same grantee; but each is worded differently, bears

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

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

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

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 at the time of the 1856 deed.

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

pursuant to the Donation Land Act, was established by the court in Dolph v. Barney, 5 Or 191

(1874) affirmed 97 US 652, 24 Led 1063 (1878). The Dolph court recognized that, under section

IV of the Donation Land Act as passed in 1850 "all future contracts for the sale of lands granted

were declared void," and thus unenforceable. Id. at 204. However, commencing with the repeal

of that section on July 17, 1854, "donees have had full power of alienation in all cases where

they had resided upon the land for four years, and made the proper proof of residence and

cultivation." See also Stark v. Starrs, 73 US 402, 418 (1867) ("[w]hen, in fact, the patent does

13 The document used by the U. S. government to transfer title to settlers claiming land was the land patent, which 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. 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.



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issue, it relates back to the inception of the right of the patentee."). Thus, even though the settler

did not possess legal title until the date the settler's patent was issued, a grant made before that

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

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

made after the date of the amendment in 1854.

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

1853, submitted the last of necessary documents proving the claim October 6, 185514, and

ultimately received a patent for the claim dated August 29, 1860, then under Dolph a deed

executed by the Skinners after October 6, 1855 could be used to grant title to claimed land. The

deed that was recorded July 12, 1856, and is dated the same day, meets the Dolph criteria and is

therefore effective to transfer title to the County. The deed recorded March 14, 1862 bears the

date May 17, 1855, five months prior to the date the Skinners "made the proper proof of

residence and cultivation" on October 6. Dolph, 5 Or at 204. Applying the criteria established in

Dolph, this deed did not transfer any interest in the property obtained by the Skinners under the

Donation Land Act.

b. The 1862-recorded deed is void as to the 1856 deed under Oregon recording law.

Even if the court were to find that the 1862-filed deed could have transferred some

measure of title to the County, under Oregon real property recording law the 1856 deed would

still be the legal deed. The current version of ORS 93.640(1) provides that:

Every conveyance, deed, land sale contract, assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement or 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 good faith and for a valuable consideration of the same real property, or any

14 The final proof of residence in the file is the sworn statement of William Dodson. See Chaney Decl., Ex. 3, page 29.



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portion thereof, whose conveyance, deed, land sale contract, assignment of all or 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 and assigns of such subsequent purchaser.

Even in 1856, the recording law then in effect contained the same basic requirements:

Every conveyance of real property within this state hereafter made, which shall 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, of the same real property, or any portion thereof, whose conveyance shall be first duly recorded. General Laws of Oregon, Ch. 7, Title I §26 (1854) (effective May 1, 1855).

Under either statute, an earlier-recorded deed will prevail over an unrecorded earlier conveyance,

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

property, and (5) records first.

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

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

the Board ordered that Skinner was authorized to "lift his bond" in their possession that

guaranteed the donation of land, and the accepted deed was recorded the same day. Immediately

following the action of acceptance and release, the Board ordered the execution of deeds for lots

sold within the land donated. Lane Co. Comm. J., Bk. A, 188. The County's actions, as recorded,

demonstrate that the County met the statutory requirements for priority:

(1) The County purchased the deed, with the release of the bond;

(2) The County acted in good faith, as is demonstrated by the acceptance, by the

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

received the deed, and without objection from any party;



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(3) The County gave valuable consideration, in the form of a cash value bond15;

(4) The deeds are for the same property, the 40-acre parcel now known as the

Skinner Donation; and

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

deed recorded on March 14, 1862.

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

in 1862 is invalid against the deed dated and recorded in 1856.16

2. The 1856 deed does not contain restrictions that limit the County’s use of the property or require that the courthouse be perpetually located upon the deeded land.

This Court’s examination of the 1856 deed will be guided by Stansbery v. First Methodist

Episcopal Church, 79 Or 155, 154 P 887 (1916), a case directly on point. In Stansbery, the

Oregon Supreme Court analyzed the conveyance of property to the defendant church “for the

purpose of a parsonage, church, etc.” Id. at 165. When the defendant church closed the building

and ceased church activities on the property, the plaintiffs, members of the church, brought an

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

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

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

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

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

15 The Skinner bond recorded April 12, 1856 was in the amount of $25,000, a considerable amount of money for the time. Chaney Decl., 3. 16 It is worth noting that the 1862 deed recites only nominal consideration, and is unsupported by any extrinsic 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 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.



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where a trust is declared; and (4) where the motive of the grantor is announced or the intention of

the grantee is revealed, without stating a condition, or prescribing a limitation, or creating a trust,

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

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

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

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

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

of re-entry, and in the second, title automatically reverts. See City of Klamath Falls v. Bell, 7 Or

App 330, 334-35, 490 P2d 515 (1971). A phrase such as “so long as” suggests a time limitation

or duration of a conditional conveyance. Id. See also Clark v. Jones, 173 Or 106,107-08, 144 P2d

498 (1943) (“The words ‘so long as’ connote a time limitation or duration of the estate. In the

instant case, the grantors, in effect, said to the school district, ‘We convey this estate to you to

have and to hold forever so long as you use the property for school purposes, but when you fail

so to do, the property will at once revert to us or our heirs or assigns.’”) Here, no such limiting

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

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

[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 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 described as follows to wit [property description removed]. (emphasis added). The habendum clause of the 1856 deed articulates the extent of the property

conveyed:

[T]o have and to hold the above granted donated and described premises for the uses and purposes above mentioned with the appurtenances thereunto belonging or in any wise appertaining thereunto on the Fourteenth Day of June One 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 forever. (emphasis added). The deed here contains no language in the conveyance providing for any event which

would trigger a right of re-entry or a reversion back to the Skinners or their heirs because: (1)

there is no language in the conveyance which could be construed to allow the grantors to

reacquire the property if it were no longer used for the location of the Lane County Courthouse;

and (2) both the granting clause and the habendum clause unambiguously state that the Skinners

are transferring the title in fee simple to the Lane County Commissioners and their successors in

office, “forever.” See ORS 93.12018 and Ward v. Klamath County, 108 Or 574, 583, 218 P 927

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

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

was not built on that parcel, the court held:

[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 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 it cannot be considered more seriously than as a covenant, the breach of which 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 title to [the property]. 108 Or at 583. Here, even if the language in the 1856 deed could be viewed as a covenant, pursuant to

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

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.”



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property would suffice to satisfy the terms of any such covenant.19 See Stansbery, 79 Or at 178

(use of land for church purposes for 60 years “fully satisfied” any contractual obligation).

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

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

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

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

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

apply in this case. “The Oregon Supreme Court provides, that as a general rule, where a

conveyance is held to create a trust, the language of the deed not only specifies the purpose for

which the land is to be used, but also expressly states, for example, that the realty shall be used

for the purpose ‘only,’ or ‘forever20,’ or ‘for no other purpose,’ or shall be held ‘in trust’ for a

defined purpose.” Eugene School Dist. No. 4J v. City of Eugene, 2007 WL 5813753 (Or Cir

April 2, 2007) (citing Stansbery, 79 Or at 173 (citing cases “where a trust is declared.”)).

In this case, the conveyance was made “for the use and benefit of said County of Lane for

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

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

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

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

c. The fourth Stansbery category applies to this case.

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, 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 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.



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This case should be analyzed under the fourth Stansbery category, where the motive or

the intention is revealed, without stating a condition, limitation, or obligation. The granting

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

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

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

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

purpose which is exclusive, and (2) by appropriate language, expressed or imported, a perpetual

use of the land itself for that exclusive purpose. Stansbery, 79 Or at 173.

A deed may impose a limitation on use if its stated purpose is coupled with words or

phrases such as “only” or “forever” or “none other” or “for no other purpose.” Eugene School

Dist. No. 4J, 2007 WL 5813753 (citing Stansbery, 79 Or at 173). If such words or phrases do

not accompany the stated purpose, the conveyance does no more than “express the motive of the

grantors or to announce the intention of the grantee.” Stansbery, 79 Or at 173-74, 176.

The Oregon Supreme Court further states:

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 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 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 (1893), Adams v. First Baptist Church of St. Charles, 148 Mich. 140 (1907) (citing Downen v. Rayburn, 214 Ill 342 (1905)). 79 Or at 176-77. Here, the deed does not state that the land was conveyed for county seat purposes “only”

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

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

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

present generation,” and which should be construed to allow for the “changes necessarily

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

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

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

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

transactions of public affairs. Such progress should not be fettered, unless the grantor’s intention

to limit the purpose of the land conveyed is expressly stated. The deed at issue here in its entirety

neither expresses nor implies that the property must be used exclusively for county seat

purposes, and construing such a limitation is contrary to the progress of Lane County, the City of

Eugene, and the citizens thereof.

Additionally, Lane County’s use of the donated 40 acres in the time since it was

conveyed by the Skinners further evidences that the parties did not intend to limit the use of the

property “forever” and “exclusively” for county seat purposes. Although the Lane County

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

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

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

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

seat of justice” and “for county seat purposes” is no more than an expression of the grantor’s

motive in conveying the property or an announcement of the County Commissioners’ original

intention in accepting the property, and has no legal effect.

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

There is language in the deed referring to the “permanent location of the seat of justice,”

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

learning “should be permanently located” on the conveyed land, such condition of the deed was

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

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

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

190 (1868).

The Court further stated that any other construction of the contract “is something more

than a condition to locate. It is a covenant to build and rebuild; a covenant against removal at any

time; a covenant to keep up an institution of learning on that land forever, or for a very indefinite

time. This could not have been the intention of the parties.” Id. at 294-95. Similarly, when the

Board had the original courthouse constructed on the land conveyed by the Skinners, the Board

had permanently located the county seat within the true meaning of the contract, and the act of

"permanently locating" was complete.

e. The extrinsic evidence does not support a restriction that limits the use of the property.

In the event the court finds that the recital and operative clauses cause ambiguity in the

deed, it is proper for the Court to consider extrinsic evidence in order to determine the parties’

intent. In construing a deed, it is the duty of the Court “to ascertain and give effect to the

intentions of the parties, as evidenced by the language of the instrument and the circumstances

attending its execution.” Wirostek v. Johnson, 266 Or 72, 75, 511 P2d 373 (1973).

First, the references in the 1856 deed to the “permanent location of the seat of justice”

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

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

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,

passed on January 12, 1853.21 See §§ 1, 3, 5, 7 (1853) (authorizing the qualified electors of Lane

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

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

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

[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 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 Lane in the Territory of Oregon. (emphasis added). Second, the term “county seat” in the 1856 deed does not limit the location of the

courthouse to the Skinner land designated “for county seat purposes.” “The term ‘county seat’

applies not merely to the lot or block and the buildings used for transacting the public business,

but to the territory designated by law, and by expression of the people locating the county seat.”

Murdoch v. Klamath County Court, 62 Or 483,489, 126 P 6 (1912). Changing the location of the

courthouse does not change the location of the county seat. Id. If the proposed site for the new

county courthouse is within the limits of the county seat, construction of the new courthouse is

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

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

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

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

the new county courthouse is less than a mile from the original Mulligan claim, and within the

limits of the City of Eugene, the site chosen for the county seat. Therefore, the relocation and

21 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-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).



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construction of the new courthouse is a proper exercise of official authority, and the language

used in the 1856 deed has no legal force to limit that power.

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

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

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

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

Ex. 3, page 26-27. Under that law, the entire 160 acres a county was entitled to take could be

sold, so long as the proceeds of the sale were "appropriated for the purpose of erecting public

buildings.” Id. While little is known otherwise about the parties' knowledge of contemporary

law, what is known is that both the County and Skinner were familiar with specifics of the 1824

Act, which used the terms "establishment of seats of justice" and placed little limitation upon the

purposes to which county land could be put. Since Skinner chose to use the same or similar terms

in the deed to the County as are used in the Act, such as "for the use and benefit of said County

of Lane for County seat purposes" and “to locate permanently the seat of justice," it seems clear

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

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

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

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

circumstance” of the parties’ intention not to limit the use of the property when the grantee in

that case was able to subsequently sell a portion of the land “without any protest or objection.”

Stansbery, 79 Or at 172. Similarly here, the Commissioners were able to use the land for

purposes other than situating a courthouse, including selling off various parcels, even prior to the

date of the deed, without protest or objection from the Skinners. This fact is supported by the

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

further supports the conclusion that neither the Skinners nor the Board of Commissioners

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

County Courthouse.

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

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

Court finds the extrinsic evidence supports that the Skinners intended to convey some portion of

the forty acres for the location of the Lane County Courthouse, no specified portion was

identified for that purpose. Furthermore, nowhere within the extrinsic evidence is there a

reference that the property should be used “exclusively” and “perpetually” for county seat

purposes, pursuant to the fourth Stansbery category. Therefore, any language identified in the

extrinsic evidence referencing “county seat purposes,” like that in the recital of the deed, has no

legal effect to limit the use of the conveyed property.

3. The dedication of the public square does not prevent the use of the South 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.

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.

"A 'dedication' is an appropriation of land by the owner for a public use." Dayton v.

Jordan, 279 Or.App 737, 746, 381 P3d 1031 (2016) (quoting Security & Invest. Co. v. Oregon

City, 161 Or 421, 432, 90 P2d 421 (1939)). The dedication may be express, or made by reference

to a designation on a plat. Id. at 748. Dedications "are to be interpreted by the court as any other

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

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 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).



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may be ascertained, and every part of the instrument given effect." Security & Invest. Co., 161

Or at 430. Consequently, to make a determination regarding a dedication, the court must (1) find

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

purposes the land was to be used.

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

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

and remain the Public Square in Eugene City," followed by a description of the area to be

dedicated:

Where as it appearing to the Board of County Commissioners within and for the 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 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 County. To wit Beginning at the center of the South East quarter of Block No (10) Ten 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 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. Lane Co. Comm. J., Bk. A, 89. (See Blommé Decl., Ex. 1) However, as has been shown, the County did not hold, or claim to hold, actual title to the

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

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

description contained in the order does not define a known area according to the recorded plat of

Eugene City.

Ample evidence exists that the County did use an area as a public square, and that area

was formally dedicated by the County Board in 1896. The 1896 Board order recited the entirety

of the 1854 dedication language, and added:



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Whereas, the description of the said public square is erroneous and should be corrected to conform with the facts concerning said square. Therefore it is Ordered by the Board of County Commissioners, that C. M. Collier, County Surveyor, make a survey of the said Public Square by beginning 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 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 and the place of beginning. That . . . the remaining portion of the Public Square be located by metes and 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. Lane Co. Comm. J., Bk. 6, 593. (See Hoehne Decl., Ex. 8) The County had clear ownership of the property after 1856, and the recorded survey

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

is what purposes are allowed under that dedication.

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

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

public, including streets and alleys . . . shall be considered a general warranty to the donee or

grantee for the use of the donee or grantee for the purposes intended by the donor or grantor.")

The court is required to consider extrinsic evidence to determining the donor's intent. Dayton,

279 Or. App at 752 ("when other evidence of intent is available, it is the court's responsibility to

weigh that evidence"). So what evidence exists of that intent?

Evidence of the intent of the original Board's is limited by the record. While “public

square” neither was nor is a term defined in statute or contemporary dictionaries, there is

evidence of the uses other contemporary public squares were and are put to.23 Such squares were

23 No conventional printed reference has been identified that contains an actual definition or exposition of the term "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,



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quite common in the centers of new towns, especially county seats, established in the American

West and Midwest in the mid-1800s. See generally Edward T. Price, The Central Courthouse

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

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

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

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

Clearer evidence of the parties' intent is the other uses to which the area was put: over

the ensuing three decades these included, on the northwest block alone, a courthouse, county jail,

city hall and firehouse, city jail, and sheds, and later an enclosed farmers market (Sanborn maps).

Not to mention the southerly portion of the parking structure built in the 1950s and, after the

closure of the original farmers market, portions of Eugene's Saturday Market, since 1970.24 The

court's attention is further drawn to the fact that, other than the 1890s litigation relating to the

extension of the streets through the square, the only contemporary record that exists of any

objection to the uses to which the square was put was the Board's action to order the removal of

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

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

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

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

dedication was to limit the use of the area within the boundary of the public square to the sole

purpose of being a site for a courthouse, exclusive of other public uses. Moreover, the

subsequent use of the square for the farmers market of the 1920s and its successor, the Saturday

and other events." Wikipedia, Town square, https://en.wikipedia.org/wiki/Town_square (last visited October 11, 2017). 24 See Saturday Market, A Historical Perspective, https:/www/eugenesaturdaymarket.org/history-of-Saturday-market.html (last visited October 11, 2017).



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Market, clearly indicate that the proposed use of the portion of the Butterfly Lot located within

the public square as a farmers market or for other public use is consistent with the dedication of

the public square.

b. The dedication of the public square does not apply to the North Parcel of the Butterfly Lot.

The North Parcel of the Butterfly Lot property consists of a number of properties

originally platted in 1855, some of which had been subsequently sold. The parcel includes the

four lots originally platted on the south side of 7th Avenue and sold to private parties in the

1850s, each of which had been increased in size by the addition of the 34 feet of roadway

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

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

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

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

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

no portion of the dedication applies to this parcel.

CONCLUSION

In 1856, Eugene F. and Mary Skinner deeded 40 acres of land to Lane County for the

purpose of establishing the County seat at Eugene City. The terms of that deed do not and were

not intended to restrict the use to which the donated land can be put or create a condition that

requires the County's courthouse be located in perpetuity somewhere within that 40 acre parcel.

In 1896, the County's Board of Commissioners dedicated the area comprising what was

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

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

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

discernable among the uses—courthouse, jails, parks, fire station, farmers market, sheds, parking

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

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

public use.

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

opinions expressed by the District Attorney in 1955 (that the area had been set aside "as a park

and recreational area"), or by the Presiding Judge of the Lane County Circuit Court in 2007 (that

sale of the northwest corner of the square to the City for construction of a city hall "would

violate the deed restrictions" in the original Skinner deed). An exhaustive examination of the

historic record and the legal documents available turns up no evidence that the dedication of the

public square was intended to be limited to a park or recreation area. And, as has been shown,

the Skinner deed contains no language creating any restriction on the use or alienability of the 40

acres deeded to the County.

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For the reasons stated above, petitioners Lane County, the City of Eugene, and the

Urban Renewal Agency of the City of Eugene respectfully request that the court issue a written

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

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

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

locating the county courthouse on the Former City Hall Lot.

DATED this 27th day of October, 2017. LANE COUNTY OFFICE OF LEGAL COUNSEL By: /s/ Stephen E. Dingle

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

CERTIFICATE OF SERVICE1

2I, 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

COUNTY'S MOTION FOR SUMMARY JUDGMENT on the 27th day of October,2017, as follows

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5Via First Class Mail, Postage Paid

6Via Personal Delivery

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Via Electronic Service to counsel's email on record with OJD/Odyssey

E-File and Serve.

X

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9 Via Email

10John G. Cox Ben Miller

City of Eugene

City Attorney's Office

125 East 8th Avenue

Hutchinson Cox11

940 Willamette St., Ste. 400

Eugene, OR 9740112Email: [email protected] Eugene, Oregon 97401

Email: ben.j [email protected]

Intervenor

14 Of Attorneys for Petitioners City of

Eugene and Urban Renewal Agency of

the City ofEugene

Trial Attorney: Ben Miller

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By: /s/ Stephen E. Dingle

Stephen E. Dingle, OSB #842077

LANE COUNTY OFFICE OF LEGAL COUNSEL

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125 East Eighth Avenue

Eugene, Oregon 97401

(541) 682-4442 phone

(541) 682-3803 fax

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Stephen. dingle@co .lane . or.us

Of Attorneys for Lane County22

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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

in the circuit court of the state of oregon for lane …

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