Oregon Advisory Opinions March 04, 1949: OAG 49-25 (March 4, 1949)
Collection: Oregon Attorney General Opinions
Docket: OAG 49-25
Date: March 4, 1949
Advisory Opinion Text
OAG 49-25.
Where two or more acres are owned by two persons as tenants in common, both tenants are "owners of land" within
the meaning of the term as used in § 125-101, O. C. L. A., as amended.
State Engineer
Dear Sir: On March 2, 1949, you presented to this office a letter from the secretary of the Ochoco irrigation district, which concerned the qualifications of electors in irrigation district elections. It was stated therein:
"According to our understanding of the law, joint ownership by husband and wife of one acre or more entitles both to a vote. * * *"
Clarifying this statement you orally requested our opinion on the following hypothetical questions:
1. Where a husband and wife own one acre of land in the district as tenants by the entirety, who is entitled to vote at the irrigation district election?
2. Where a husband and wife own two or more acres as tenants by the entirety, may either or both vote?
3. Where but one acre of land is owned by two persons as tenants in common, who is entitled to vote?
4. Where two or more acres are owned by two persons as tenants in common, who is entitled to vote?
The only statutory provision to be found in our laws relative to the qualifications of voters at irrigation district elections is § 125-101, O. C. L. A., as amended by chapter 374, Oregon Laws 1941, which provides in part as follows:
"The terms 'owner of land' or 'elector,' as used in this act, shall include every person, male or female, over the age of 21 years, whether a resident of the district or state or not, who is a bona fide owner of one acre or more of land situated within and assessed by the district whose deed has been recorded in the county deed records more than six months, or, in case of a bona fide contract of sale of one acre or more of land situated within, and assessed by, the district, which contract has been recorded in the county deed records more than six months, the vendee named in such contract shall, for the purposes of this act, be considered the elector to the exclusion of the vendor; * * *." (Emphasis supplied)
This section further provides for the qualification of voters at irrigation district elections where the water supply is purchased from the United States government, and in such cases, in addition to the foregoing qualifications, the elector must be the owner of four or more acres of land or a holder of a contract to purchase. See Opinions of the Attorney General, 1938-1940, p. 479; 1944-1946, p. 272. Concerning the qualifications of a contract purchaser, see Opinions of Attorney General, 1944-1946, p. 189.
We are primarily concerned in this opinion with a construction of the word "owner," as used in the foregoing statute. The word is one of broad and general signification and therefore possessed of various shades of meaning. It has no literal meaning and must be interpreted according to the context and purpose of the particular statute: Marvin & Co. v. Piazza, 129 Or. 128, 132. As stated in Binhoff v. State, 49 Or. 419, at page 422:
"* * * The word 'owner,' as applied to land, has no fixed meaning which can be declared to be applicable under all circumstances and as to any and every enactment. It usually denotes a fee-simple estate, but it has been defined to be 'one who has the usufruct, control or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate': * * *"
To the same effect, see Wheeler v. Nehalem Timber Co., 79 Or. 506, 516; Schram v. Manary, 123 Or. 354, 363; annotations, 2 A. L. R. 778; 95 A. L. R. 1085.
In Opinions of the Attorney General, 1940-1942, p. 99, this office was presented with a question of whether a man and wife owning eleven acres of land could both vote at an election for the formation of a soil conservation district. Under the statute there involved a landowner or elector was defined as any person owning ten acres or more of lands in the district. Answering the particular inquiry it was stated:
"The answer to this question depends upon the application of the word 'owning'. A man or wife may own land in severalty; that is, one of them owns a distinct tract; he or she is the owner of such a tract and is the only one entitled to vote, although the wife has a dower interest in the lands of the husband, and the husband by the estate of curtesy in the lands of his wife.
"A tenancy by the entirety is created by a conveyance of lands to husband and wife, the survivor taking the whole estate: In re Flynn, D.C.Pa. 1 F. (2d) 566, 567; Oliver v. Wright, 83 Pac. 870, 871, 47 Or. 322.
"In estates by the entireties, neither the husband nor wife are seized of moieties, but of entireties, each being the owner of the entire estate, and, if either dies, the estate continues in the survivor, and, upon the death of both, the heirs of the last survivor take to the exclusion of the heirs of the first deceased: Wimbush v. Danford, 292 Mo. 588, 238 S.W. 460, 466.
"An estate by the entireties is vested in husband and wife as one person; both take an undivided share; neither spouse can sell, forfeit, or incumber any part of the estate without the consent of the other. On the death of either spouse the entire estate goes to the survivor, it cannot ordinarily be partitioned during their joint lives, it cannot be severed by the act of either, but it may be
sold or mortgaged by properly executed instrument joined in by both husband and wife; the wife's contract alone to pledge it being utterly worthless: Logan Moore Lumber Co. v. Legato, 100 Fla. 1451, 131 So. 381.
" It is my opinion that the legislature did not intend that more than one person should vote as owner of a distinct tract of land at an election for the organization of a soil conservation district, unless the title is held in undivided interests. Any other interpretation of the statute would result in inequality as to voting power, because if a tract of land were owned by an individual who is unmarried, he would have but one vote, whereas if tenants by the entirety were both permitted to vote they would exercise a greater voting power based upon like ownership, and in case tenants in common were each permitted to vote as representing the entire tract held by such tenancy, there would be an exercise of double power as to the entire tract. If, on the other hand, the statute is construed as authorizing only one person to vote as to any such distinct tract of land it will be uniform in its application to those exercising the privilege of voting. Under such construction either husband or wife may be permitted to vote the entire acreage of land held by them as tenants by the entirety, but not both of them. Tenants in common can vote the amount which they respectively own in undivided portions, and a husband or wife who is the owner in severalty may vote, but not the spouse. " (Emphasis supplied)
The foregoing opinion also considered the fact that the word "owner" is a term of wide application, as previously discussed. We think the opinion is sound and is particularly applicable to your inquiries.
1. In answer to your first inquiry, it is our opinion that where a husband and wife own but one acre of land in the district as tenants by the entirety, either husband or wife may be permitted to vote, but not both of them.
2. Where husband and wife own two or more acres of land as tenants by the entirety the same conclusion holds true; that is, either husband or wife may vote, but not both of them.
In order to fully answer your third and fourth questions, it is necessary that we distinguish between the type of tenancy previously discussed and a tenancy in common. A tenancy in common may be defined as that character of tenancy whereby two or more persons are entitled to land in such manner that they have an undivided possession, but several freeholds. As stated in 14 Am. Jur., § 16, p. 87:
"Unlike the joint tenancy, the tenancy in common is characterized by a single essential unity---that of possession, or of the right to possession, of the common property. If such unity exists, there is a tenancy in common irrespective of any other unities; and if it does not exist the estate is not a tenancy in common. * * *"
Section 17 provides:
" Tenants in common have several and distinct titles and estates, independent of each other, so as to render the freehold several also. They are separately seised, and there is no privity of estate between them. While their possession is per my, and not per tout, each tenant, as to his share, is to be deemed the owner of an entire and separate estate. And although it may be presumed in a proper case that the interests of the several tenants are equal, this presumption is applicable only in the absence of evidence; and where the proportion of the total purchase price paid by each is known, such fact may be determinative of the issue." (Emphasis supplied)
A tenant in common under certain circumstances has been held to be the "owner" of premises: Marcus v. Street Commissioners, 252 Mass. 331, 147 N. E. 866; Marvin & Co. v. Piazza, supra. However, under court interpretation of other statutes a tenant in common has been held not to be an owner: Warren v. Borawski et al., 37 Atl. (2d) 364.
The only case which the writer has found which discusses the problem involved with relation to irrigation districts is the early case of Directors of Fallbrook Irrigation District v. Abila, (Cal.) 39 Pac. 794. The question was discussed, but not decided, whether tenants in common were owners of land within the meaning of the Wright act relating to irrigation districts. In its opinion the court said:
"It must also be left an open question whether or not a tenant in common is to be considered as an owner of land within the meaning of the Wright act. The legislature when enacting a statute, must be presumed to act with the knowledge and in view of general and well established principles of law; and whether or not the legislature, when passing the Wright act, intended to abrogate the fundamental principle that one tenant in common can not create a charge upon the common land, is certainly a grave question. It is evident that if one tenant in common can overrule all his other cotenants, or if, of a large number of tenants in common of one tract, each is individually a qualified signer of the petition, many complications might arise under which much injustice would come to the other owners of land. See Mulligan v. Smith, 59 Cal. 206, and Pfeiffer v. Regents, 74 Cal. 156, 15 Pac. 622. But these questions, as before stated, are unanswered."
The foregoing statement indicates the difficulties that are presented in attempting to determine whether or not a tenant in common is an owner within the meaning of the Oregon irrigation district law.
It is our opinion that in order to determine whether or not such tenant is the owner of one acre of land so as to qualify
him as an elector, we should follow the presumption that each tenant is deemed to be the owner of an entire and separate estate and that the interests of the several tenants are equal. Unless we apply this construction none of the tenants in common would be eligible to vote, regardless of the acreage of land that is owned by them.
3. Responding to your third inquiry, it is our opinion that where but one acre of land is owned by two or more persons as tenants in common, none of the tenants is an "owner of land" within the meaning of that term as used in § 125-101, O. C. L. A., as amended. See Opinions of the Attorney General, 1944-1946, p. 272.
4. Where two or more acres are owned by two persons as tenants in common, it is our opinion that both tenants are owners of one acre of land within the meaning of the foregoing statute, regardless of the fact that technically they are owners of undivided interests in the particular tract.
In so answering your inquiries, we have placed what we feel is a practical construction of the term "owner of land," as used in § 125-101, O. C. L. A., as amended, with a view of carrying into effect the legislative intent. As previously indicated, the term is capable of broad interpretation and should be clarified by legislative amendment.