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Tarlow v. Arntson

January 19, 1973

TARLOW ET UX, APPELLANTS,
v.
ARNTSON ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Clifford B. Olsen, Judge.

Marvin S. W. Swire, Frank D. Riebe, and Rosenberg, Swire & Riebe, Portland, filed briefs for appellants.

James F. Spiekerman, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, filed a brief for respondents.

In Banc. Holman, J.

Holman

This is a suit for a declaratory judgment. Plaintiffs seek interpretation of a written agreement concerning the common use by plaintiffs and defendants of an elevator and also supplementary relief in the form of an injunction restraining defendants' use of the elevator. Plaintiffs appeal from a decree of the trial court declaring that defendants are entitled to the use of the elevator in common with plaintiffs as long as defendants' use does not unreasonably interfere with plaintiffs' use and as long as defendants pay their proportionate share of the costs of maintenance and repair of the elevator.

On April 14, 1927, plaintiffs' predecessors in interest deeded part of a parcel of ground to defendants' predecessors in interest, retaining a perpetual easement for the construction and maintenance of an elevator on a small portion of the granted premises adjoining the land which was retained. A multistory building was then, and is now, upon each of the two

parcels (that parcel granted and that retained). The buildings are contiguous and each is served by a common elevator upon that part of the premises which was the subject of the easement. Two weeks later, on April 27, the same parties entered into a written agreement allowing defendants' initial predecessor the use of the elevator. The relevant parts of the agreement concerning the use of the elevator are as follows:

"THIS AGREEMENT MADE AND ENTERED INTO AT PORTLAND, OREGON, this 27th day of April, 1927, by and between Nassau Co., a corporation hereinafter referred to as the 'Company', [plaintiffs' predecessor in interest] and McEwen Ransom, hereinafter referred to as the 'Licensee' [defendants' predecessor in interest],

WITNESSETH:

"* * *.

"It is the desire of the 'Licensee' to be permitted to use said elevator at such times and in such manner as may be convenient. The 'Company' is willing to grant to the 'Licensee' the right to use said elevator all in accordance with ...


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