July 2011 - Parks & Recreation - 34

LAW REVIEW continued from page 31

no period following " used by City of
Benton Harbor. " Instead there is a
phrase which immediately follows the
quoted language which modifies
how Benton Harbor may use the
property...
Clearly, while the deed was granted

to Benton Harbor, it was contemplated
that Benton Harbor may, at some time,
assign some, if not all, of its interest in
the property to another. Had this not
been contemplated, there would be no
need to include language referencing
Benton Harbor's " assigns, heirs or legal

representatives " of the " then owner or
any tenant. "

Having found " no ambiguity in the
deed language at issue, " the appeals
court concluded it was not necessary to
" refer to extrinsic evidence in interpreting the deed restriction.
Here, the deed, when read as a whole,
does not restrict the person or entity to
use the property to Benton Harbor. As
aptly noted by the trial court, " nothing
in the deed or the consent judgment
expressly prohibits the lease of part of
the park to a private, nonprofit entity to
carry out or implement a park
purpose. "

As a result, the appeals court rejected plaintiffs' assertion that " the deed requires that the property be exclusively
used by only Benton Harbor is without
merit. " Further, the court found that " Benton Harbor is, in fact, using the property. "

Define " Use "

Murdock
Super Secur

Since 1853

parks * golf courses * cemeteries * municipalities

Your one source for quality
* outdoor drinking fountains
* showers
* water hydrants
* pet fountains
* pre-engineered park and
recreation buildings
* outdoor bicycle security lockers

P.O. Box 3527, City of Industry, CA 91744
Tel. 800-45-DRINK (800-453-7465)
Email: info@murdock-supersecur.com
www.murdock-supersecur.com

Circle 17 on product information form on PAGE 79

32 Parks & Recreation

J U LY 2 0 1 1

www.NRPA .ORG

Because the term " use " was not defined in
the deed, the court referred to " dictionaries to determine the plain, ordinary meaning of the word " to interpret the phrase
" shall forever be used by said City of Benton Harbor. "
Black's Law Dictionary (7th ed) defines
" use " as " the application or employment of something; esp., a
long-continued possession and employment of a thing for the purpose for
which it is adapted, as distinguished
from a possession and employment that
is merely temporary or occasional. " The
American Heritage Dictionary (4th ed.)
defines " use " as " to put into service or
apply for a purpose; employ. "

Applying the ordinary meaning of
" use " to the facts of the case, the appeals
court agreed with Benton Harbor that the
lease was " putting the property into service and thus the lease is a 'use' of the
property. " In so doing, the court found
" Benton Harbor benefits from the property while still retaining title ownership
of the same. " Specifically, the court noted that " Benton Harbor derives monetary
and other gain from leasing the property
to Harbor Shores. "

July 2011 - Parks & Recreation

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