Bader v. Coale

TUTTLE, J.

This action was brought to enjoin respondent city of Stockton (and its council) from erecting a firehouse upon one of its parks. Findings were filed, disposing of all issues in favor of respondents, and judgment was entered denying an injunction. Plaintiffs appeal from said judgment.

As we view it, the only question of any merit arises out of the construction of the deed by which the city acquired the property, and the following provision thereof:

“And it is further provided, and this conveyance is made and accepted upon the further express condition that after the period of twenty-five years from date hereof, said City of Stockton may devote said premises, except the strips heretofore mentioned, to any public benefit or use that in the judgment of the then properly vested powers of the Municipality may deem most wise for public benefit, but in no event is said property to be sold or used commercially or for in

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come purposes

nor shall there ever he allowed on sadd property any cemetery, incinerator, jail, hospital, crematory or infirmary, house of correction, garbage disposal plants or anything of like character.”

It is the contention of appellants that a firehouse is “of like character” as the preceding uses mentioned.

The rule governing the situation is thus expressed in 6 Cal. Jur. sec. 163, pages 252, 253, 254 and 255:

“The primary object of all interpretation is to ascertain and carry out the intention of the parties. ‘To interpret a contract is to ascertain the true intent of the contracting parties. ’ . . . Intention is to be ascertained from a consideration of the language employed and the subject matter of the contract. Resort is first had to the contract itself; and if the intention is doubtful under the terms of the instrument, the surrounding circumstances may be considered to determine its meaning. The court will ascertain the relation of the parties to each other, and to the subject matter, and if possible, so construe the instrument, however inartificially drawn, as to give effect to the intention of the parties, if it can be done without disregarding the language of the instrument. ’ ’