Date uncertain, ca. 1960s
OFFICE OF THE CITY ATTORNEY
TO WHOM IT MAY CONCERN:
SUBJECT: BIDWELL PARK REVERSIONARY INTERESTS
Recently this office had a number of phone calls from persons seeking information concerning the acquisition of Bidwell Park. In some cases the caller professes to be doing a research article, or preparing to do a news story. Some of the specific questions were in substance as follows:
- Under what authority did the City of Chico sell an interest in Bidwell Park.
- Has the City violated the terms of the Bidwell Will?
- What happens to the reversionary interests as contained in the Bidwell Deed?
- How did the City acquire the reversionary interests?
- Who has a right to use Bidwell Park?
- Can the City restrict the use of Bidwell Park?
- Numerous other questions bearing remotely upon at least one or the other of the above.
In order to conserve the time of the personnel of this office in making response to the many inquiries, and hopefully to clarify and lay at rest many unsupported rumors, and legally unsupported conclusions, we prepare this memorandum for the benefit of interested persons.
1. BIDWELL WILL
Annie K. Bidwell died in 1918. Her husband, John Bidwell predeceased her some twenty years earlier. The Wells Fargo Bank of San Francisco was the executor of the will, which was admitted to probate in Butte County, in 1918. The will is a lengthy document prepared by her nephew. Guy R. Kennedy, a local lawyer, who died in late 1933. He, and a local attorney, Jerome D. Peters, Sr., were the attorneys for the executor. The estate was kept open for many years, finally being closed, I think about 1936. The will is on file in the County Clerk’s office in Oroville, and may be examined by any interested persons. Mrs. Bidwell made more bequests than she had assets. It was necessary for the executors to liquidate and convert to cash all the real property assets. Because of the intervening depression, land values were low, and after payment of debts, taxes and expenses of administration, there were not sufficient funds on hand to satisfy various classes of bequests.
This will had no effect upon Bidwell Park, the Children’s Playground or any other property deeded to the City by the Bidwell’s. This property had all been deeded out before her death. There was only one thing in connection with the probate proceedings in which the City later benefited, and this concerned the “reversionary rights” reserved in most all of the deeds to Bidwell land sold prior to Mrs. Bidwell’s death. This aspect will be treated under a separate heading below.
2. REVERSIONARY RIGHTS
An examination of the Batham & Batham map of Chico and surrounding area, 1959, will reveal some twenty-one subdivisions of Bidwell Rancho lands, extending from Big Chico Creek southwest of Chico, to the Twenty-First Sub lying east of Chico, in the vicinity of East 8th Street and Big Chico Creek. Practically all of these subdivisions were set up by Mrs. Bidwell after the death of the General. Mrs. Bidwell had an aversion to the manufacture, sale and use of alcoholic beverages. She was leader of the W.C.T.U. An examination of Butte County records will reveal that every original deed from Mrs. Bidwell to any of these subdivision lands and other direct. conveyances not included in the subdivisions, such as Chico Vecino, for instance, containing one or more restrictions upon the use of the property, but there was one uniform restriction contained in every deed which reads substantially as follows:
“Second party (grantee) shall not use, cause to be used, or allow to be used, directly or indirectly, said land or any part thereof for the purpose of making or selling intoxicating liquors of any kind, or variety, or for the purpose of giving the same away.”
There then followed a reversionary clause to each deed, substantially as follows:
“Should said conditions or any or either of them, be broken or disregarded by said second party, then the title herein granted and conveyed by this deed, shall cease and revert to and be vested in the first party (Bidwell), her heirs or assigns.”
A great deal of the subdivision lands were sold for agricultural purposes, and that restriction didn’t make any difference to the farmer. Banks did not do a great deal of business in home loans prior to the ’20’s so again this restriction was not too bothersome. Development began to increase in the ’20’s, and this restriction became a nuisance. Lending agencies began to become wary and refused to make loans because of the possibility the title might be forfeited if the owner violated a condition of the deed. Thus real estate development in these subdivisions was brought to a standstill, except where private loans could be obtained. During the late ’20’s and the first two or three years of the 1930’s, the best legal minds explored the possibilities of overcoming this problem, which was finally resolved in 1934, and is described under the next heading.
3. SALE OF REVERSIONARY INTERESTS
The Butte County Superior Court held that the reversionary right reserved by Mrs. Bidwell to herself and her heirs was in the nature of a property right in real property. Under the probate law where an estate does not have sufficient cash to satisfy special bequests, the executor may resort to other assets and liquidate the same in a certain order of priority. Lastly, in the order of priority is “interests in real property”. Accordingly, the court issued an order directing the executors to inventory the reversionary interests outstanding in the Bidwell heirs in all real property theretofore conveyed by the Bidwells in Butte County in which this reservation was made, and to have this reservation appraised and sold, and that the proceeds be turned in to the estate to be used to satisfy bequests and expenses of administration. The Title Insurance and Guaranty Company of San Francisco, the underwriter for a number of companies in this area interested in insuring loans on Bidwell subdivision properties, agreed to bid at the probate sale on this reversionary interests and if it acquired the title thereto at the sale it would hold this title in trust, so to speak, for the protection of itself and all of the other title companies for their protection should they subsequently issue policies. A subscription was taken up among property owners affected in the community, and this money was turned over to the title company. When the sale came up, the title company bid and no one else did bid, and the court confirmed the sale to the title company. It is my recollection that the title company purchased this reversionary interest for somewhere in the neighborhood of $2,000 to $2,500. After the sale was confirmed the executor, pursuant to the order of court, conveyed by deed this reversionary interest in real property to the title company. Thus the Bidwell heirs had no further right in this reversionary interest. This asset, which would otherwise have vested in those heirs was sold out of the estate pursuant to probate law. The sale of this asset was no different had someone been willed a parcel of land and under the probate procedure this land had to be sold to satisfy debts. In such case, the beneficiary of that bequest lost out.
The conveyance did not describe any lands, but described the reversionary interests in all lands in Butte County that had ever been conveyed by the Bidwells in which such reservation existed. Remember, at this point the word “sale” was not used, but instead the word “conveyance” was used. This distinction becomes important in reference to the Park later.
4. BIDWELL PARK AND CHILDREN’S PLAYGROUND CONVEYANCES
- Deed from Annie E. K. Bidwell to the City of Chico, dated July 10, 1905, conveying 1,902.88 acres.
- Deed from Annie E. K. Bidwell to the City of Chico, dated May 11, 1911, conveying 301.76 acres.
- Deed from Annie E. K. Bidwell to the City of Chico, dated April 1, 1911 (Children’s Playground and Chico Creek from the Esplanade to the S.P. Railroad).
The first mentioned deeds comprised Bidwell Park as received from Mrs. Bidwell, and the latter the Children’s Playground (some additional land has been added to the Park, namely the area known as The Forestry, and the Kennedy properties. These are not restricted as are the Bidwell Deeds.)
In each of the Bidwell Deeds is a restrictive provision and the reversionary clause. The Park deeds contain five restrictions, summarized as follows:
- Liquor clause.
- That the property be used as a public park for the benefit of the “citizens and residents of the City of Chico”.
- Must use the park in such manner as to preserve, as far as reasonably possible, the beauty of the park, the shrubbery, vines, trees, etc., and the waters of the creek.
- Not to permit any hunting, except where necessary to protect birds.
- Not allow public picnics on Sunday, that is to say, orders, lodges, organizations or associations or advertised public picnic (private picnics excluded).
These were followed by the reservation clause providing for forfeiture in the event of violation.
Similar restrictions applied to the Children’s Playground with some variations.
While the two park deeds were made in 1905 and 1911 respectively, in each case Mrs. Bidwell reserved a life estate as to herself, so that full use and enjoyment of the Park by the City did not materialize until her death in 1918. When the first City Charter was adopted, about 1923, the Bidwell Park and Playground Commission was created and invested with the full control and management of the Park.
5. ACQUISITION BY CITY OF REVERSIONARY INTERESTS
About 1947, this office, because of certain incidents that had occurred in the Park, particularly during the war and thereafter, which possibly could have been construed as a violation of the restrictive covenants of the Bidwell Park Deeds, became concerned over the possibility of forfeiture action by some of the living Bidwell heirs, and because of this concern, made a complete study of the Bidwell estate proceedings following the disposition and sale of the reversionary rights. As a result of this study, we became convinced that the sale to the title company of the reversionary rights, included not only sales of Bidwell subdivision lands or other lands directly by the Bidwell’s to buyers, but that the language of the court order and the deed was broad enough to include the gift conveyances to the City of Chico, since the word “sale” was not used in the court proceeding, but rather, the word “conveyances” was used. The title company in San Francisco agreed with this conclusion. After explaining our concern to the title company, the title company agreed to deed the reversion it held in the park lands and Children’s Playground by way of quit claim to the City. Such deed was received in 1948 and recorded. The effect of this deed was to merge this outstanding reversion, then held by the title company, with the restricted title held by the City, and thus vest in the City the full fee interest in the park and playground lands without restrictions. Thus, after the recording of that deed, the forfeiture of the park lands could never be worked by a Bidwell heir.
6. CAN CITY NOW USE OR CONVERT BIDWELL PARK LANDS OR PLAYGROUND LANDS TO A USE CONTRARY TO THE INTENT EXPRESSED BY THE GRANTOR IN THE BIDWELL DEEDS?
The answer to this question is generally no. While a Bidwell heir cannot work a forfeiture for a violation of one of the deed restrictions, the City nevertheless is bound to continue the use thereof for a park for the benefit of all of the people of the City of Chico. It accepted the grant in the nature of a trustee for the benefit of the citizens of Chico. Should the City of Chico attempt to convert the park to a different use, it could be enjoined in court action by a citizen from so doing. This is not to imply that the City still has to observe all of the deed restrictions, with all of the possible ramifications that might emanate therefrom. There is no purpose in enlarging upon all of those things here. Suffice it to say, it must be continued as a park for park purposes and protected and preserved in such manner as to accomplish those objectives.
7. CAN THE CITY ALIENATE AN INTEREST IN THE PARK?
The City cannot sell, give away or convey any interest in Bidwell Park or the Children’s Playground, and contrary to some existing impressions, the City has never sold or conveyed any interest in Bidwell Park or the Children’s Playground. Parts of the park and parts of the Children’s Playground has been taken by other governmental agencies through eminent domain proceedings. The college took part of Children’s Playground some years back for one of its buildings, and the state condemned a freeway right of way through the park, and the United States condemned a right of way for the Central Valley powerlines through the park above the Five Mile Dam. When I say the City cannot make a sale of any part of the park, or convey any interest therein, I am referring to the authorized city government. Conceivably a portion of it could be sold by a vote of the people, since the title is vested in the people (See Section 14 of the City Charter). However, we are not passing on that point in this memorandum.
8. USE OF BIDWELL PARK
Legally the City holds title to Bidwell Park for the benefit of “all of the people of the City of Chico”. Thus the City could restrict the use of the park to city residents. All city residents have a right to use the park, subject to the rules and regulations established by the Bidwell Park and Playground Commission adopted pursuant to the City Charter, and not in conflict with the general purposes of the Bidwell Grant, to wit, a park purpose.
Grayson Price, City Attorney