In determining the intention of the parties, "[t]he courts construe the whole mass of words and not merely some of them." Strandholm v. Barbey, 145 Or. 427, 441, 26 P.2d 46 (1934). In the case at bar plaintiffs contend that no interest in land was created by the grant of the grazing privilege to them and that plaintiffs are "licensees" only.
); Thomas , 225 Or. at 552, 358 P.2d 1066. SeeStrandholm v. Barbey , 145 Or. 427, 441, 26 P.2d 46 (1934) (in determining the intention of the parties, courts construe “the whole mass of words and not merely some of them.”); Logan v. D.W. Sivers Co. , 343 Or. 339, 347, 169 P.3d 1255 (2007) (the substance of an agreement, not its label, determines its legal effect); Eggen et ux. v. Wetterborg et al. , 193 Or. 145, 153, 237 P.2d 970 (1951) (“Such construction should be given the agreement, if possible, as will render all of its clauses harmonious, so as carry into effect the actual purpose and intention of the parties as derived from them.” (citing Dellwo v. Edwards , 73 Or. 316, 323, 144 P. 441 (1914) )).
Id. at 250 (citations omitted).Hampton v. North Carolina Pulp Co., 1943, 223 N.C. 535, 27 S.E.2d 538; Columbia River Fisherman's Protective Union v. City of St. Helens, 1939, 160 Or. 654, 87 P.2d 195; Strandholm v. Barbey, 1933, 145 Or. 427, 26 P.2d 46; Radich v. Fredrickson, 1932, 139 Or. 378, 10 P.2d 352. See also Restatement (Second) of Torts § 821C comment h, illustration 11, discussing recovery by fisherman who uses specific waters where fish are killed.
It is further alleged that the beach or spit on the west and southwest end of the island is peculiarly adapted to the drawing of seines and floating fishing gear, and that the said waters are immensely valuable for the purpose of seining for salmon; that on or about May 1, 1930, appellant Barbey and appellant Columbia River Packers Association, a corporation, hereinafter referred to as the association, leased from appellee for a period of five years, for seining purposes, the land on the south side of Sand Island, described as Sites No. 1, 2, 3, 4, and 5 in said lease, which sites are described and mapped in Strandholm v. Barbey, 145 Or. 427, 26 P.2d 46, which is incorporated in the bill; that defendants, after occupying Sand Island for the years 1930 and 1931, secured a cancellation of the lease and abandoned the premises.
Interestingly, in describing the differences between leases and licenses, the North Dakota court in Lee noted that a license is generally revocable at will without notice. Id. at 471 (citing Strandholm v. Barbey, 145 Or. 427, 440, 26 P.2d 46, 51 (1933)). In the agreement between the Civic Center and Mr. Soltesz, the agreement was terminable only upon giving a 45–day notice.
A license "conveys no estate in affected property, and is generally revocable at will without notice." 262 N.W.2d at 471, quoting 25 Words and Phrases,"License", p. 231 (1961) [citing Strandholm v. Barbey, 145 Or. 427, 26 P.2d 46, 51 (1933)]. A license is not property "requiring just compensation for its taking."
This thirty-day notice provision to terminate use, when construed with the monthly use rate, is sufficient to create a monthly term. A license, unlike a lease, is generally revokable at will without notice. Strandholm v. Barbey, 145 Or. 427, 440, 26 P.2d 46 (1934). The thirty-day notice provision quoted above is inconsistent with construing the "Use Agreement" as a mere license.
"`License,' unlike `lease,' conveys no estate in affected property, and is generally revocable at will without notice. Strandholm v. Barbey, 145 Or. 427, 26 P.2d 46."
The right conferred to a licensee is usually personal to him and is not the subject of transfer. Strandholm v. Barbey, 145 Or. 427, 26 P.2d 46 (1934). However, the rule that a license is not transferable is not an invariable one. It may be assignable if the parties so intend. Where it is created for commercial purposes, it is normally inferred that the parties intend it to be assignable unless there is evidence of contrary intent.
Houck has argued that the license, if any, given plaintiffs' predecessors was personal to them and was not assignable. While we need not pass upon the question in this case, it might be well to note that a license can be assignable if the parties so intend. See Strandholm v. Barbey, 145 Or. 427, 26 P.2d 46 (1934) (by implication); 2 American Law of Property § 8.122 (A J Casner ed 1952); Restatement of Property § 517 (1944). Where a license is created for commercial purposes, it should normally be inferred that the parties intended it to be assignable, unless the evidence proved the contrary intent.