State, By and Through State Land Bd. v. Corvallis Sand & Gravel Co.

• Decision Date: 28 January 1975
• Citation: 18 Or.App. 524,526 P.2d 469
• Parties: STATE of Oregon, Acting By and Through the STATE LAND BOARD, Appellant-Cross- Respondent, v. CORVALLIS SAND AND GRAVEL COMPANY, an Oregon corporation, Respondent-Cross- Appellant.
• Court: Oregon Court of Appeals

Page 469

526 P.2d 469

18 Or.App. 524

STATE of Oregon, Acting By and Through the STATE LAND BOARD Appellant-Cross- Respondent, v. CORVALLIS SAND AND GRAVEL COMPANY, an Oregon corporation Respondent-Cross- Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 15, 1974.

Decided Sept. 9, 1974.

Rehearing Denied Oct. 22, 1974.

Review Granted Jan. 28, 1975.

Peter S. Herman, Senior Counsel, Salem, argued the cause for appellant-cross-respondent. With him on the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Robert Mix, Corvallis, argued the cause and filed the briefs for respondent-cross-appellant.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

This is an action at law in ejectment by the state pursuant to ORS 105.005 et seq., to recover possession of 11 described parcels of real property constituting portions of the bed of the Willamette River near Corvallis, and to recover damages for the reasonable value of the use of such parcels.

In 1958 the state filed a suit to quiet title to the land adjoining certain lots, which lots constitute a portion of the property in dispute now. In 1959, at trial, the case was dismissed without prejudice on motion for a voluntary nonsuit for failure of proof. In 1960 the state filed a suit for an accounting and an injunction covering the area in dispute in the case at bar. This case was voluntarily dismissed in 1961 by the state before it was at issue.

The first complaint in this action was filed by the state on June 7, 1965. In the complaint the portion of the riverbed in dispute was described as one parcel; the portions of the riverbed now constituting Parcels 2A, 2B and 2C were omitted. Instead of answering, the defendant filed a complaint in equity seeking to permanently enjoin the state's ejectment action. The state demurred to the complaint. The trial court overruled the demurrer and a decree was entered in favor of Corvallis Sand and Gravel. On appeal the Supreme Court reversed. Corvallis Sand & Gravel v. Land Board, 250 Or. 319, 439 P.2d 575 (1968).

On December 23, 1969, the plaintiff filed its first amended complaint in ejectment in which it described the riverbed it sought to recover as 11 separate parcels and claimed damages for the use of each parcel. On July 7, 1970, the defendant filed its answer, denying the allegations of the complaint and raising 12 affirmative defenses. After procedural disputes leading to several amended answers, trial was held before the court without a jury, commencing October 11, 1971.

On May 25, 1972, the trial court issued a memorandum opinion awarding various parcels to each party and setting the amount of damages for the previous use by defendant of those parcels awarded to the state. Findings of fact and conclusions of law were entered on June 19, 1972. The court supplemented these findings on July 28, 1972, and judgment was entered the same day. The state appeals from that portion of the order which awards parcels described for the purposes of this litigation as 2A, 2B and 2C to the defendant, on the ground that it erred in finding that these parcels were formed by avulsion, and from the failure of the trial court to award interest on the money judgment from the date of taking by defendant to the date of the judgment. The defendant cross-appeals from a variety of procedural rulings of the court, and the striking of certain of its affirmative defenses, the award of certain parcels to the state, and the award of damages. For the reasons which follow, we affirm the trial court in all its rulings and its judgment with the exception of one relatively minor item of damages which we reverse.

I. Scope of Review

The scope of appellate review of the facts presented in this case was stated in Reif v. Botz, 241 Or. 489, 496, 406 P.2d 907, 910 (1965):

'* * * On appeal in an action at law from findings of fact by a trial court sitting without a jury, this court cannot again place the evidence on the scales to see which side preponderates. We must confine ourselves to a search of the record for some evidence to support the findings. If we so find * * * those findings cannot be disturbed.'

See also, May v. Chicago Insurance Co., 260 Or. 285, 490 P.2d 150 (1971); State Highway Com. v. DeLong Corp., 9 Or.App. 550, 495 P.2d 1215, Sup.Ct. review denied (1972), cert. denied 411 U.S. 965, 93 S.Ct. 2142, 36 L.Ed.2d 684 (1973). The various findings of fact as to the formation of the various parcels and the amount of material removed from each parcel must be reviewed in light of this standard.

Much of the dispute in this case centers around the difference in testimony of the expert witnesses of the parties. The credibility of the various witnesses and the weight to be given to their testimony is a matter for the trial court and will not be passed upon again by this court in a law action. Armbrust v. Travelers Ins. Co., 232 Or. 617, 376 P.2d 669 (1962).

Finally, we should note that when we state facts in this case, we are using the findings of fact of the trial court in all instances in which there is a conflict in the evidence.

II. Ownership of the Parcels in Dispute

This litigation involves ownership questions of certain parcels of the bed of the Willamette River ¹ near Corvallis, Oregon, which parcels lie between ordinary high watermarks in an area bounded by the Mary's River on the north or downstream end, and the City of Corvallis Water Treatment Plant to the south or upstream end. For the purposes of this litigation, the state, in its complaint, divided this section of the river into 11 separate parcels. ² On appeal, the ownership of eight of these parcels is in issue.

In order to put the ownership question into perspective, a brief overview of the facts is necessary. Prior to the latter part of 1909, the northerly portion of the Willamette River now shown on the attached map as the East Channel was the main channel of the river. Prior to 1909 the main channel veered to the east from a point just south of what is shown as Parcels 2A, 2B and 2C, went around the east side of Fischer Island and rejoined what is now the main channel at a point to the northwest of Parcels 2A, 2B and 2C. The area shown on the map as Parcels 2A 2B and 2C, and described as the Fischer Cut area was a minor non-navigable channel which was submerged only seasonally. However, following a storm and flood in late 1909, the area known as Fischer Cut became the main channel of the river and the East Channel gradually beame non-navigable.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

With regard to Parcels 2A, 2B and 2C, the issue involves the consequences of this change of channels, with the state claiming ownership by virtue of its sovereignty over navigable waters and the application of an erosion principle. The defendant contends that the change was actually avulsive and that, in any event, the state's sovereignty does not extend to the bed of the river included within these parcels.

With regard to other of the parcels the issue is who was holder of the original title. Finally, with some parcels, the issue arises because of formations of islands within the bed of the river, accretions thereto, removal of gravel deposits by the railroad, the construction of a wingdike in 1948 by the Army Corps of Engineers, and the general erosive and accretive processes of the river over the course of time.

The trial court awarded Parcels 2A, 2B and 2C to the defendant, and all the others to the state. Both parties raise a variety of factual and legal contentions in opposition to the findings and conclusions of the trial court. We will treat each parcel separately recognizing that, to some degree, the factual discussion as to each parcel will overlap somewhat the general discussion above.

A. Parcels 2A, 2B and 2C (Fischer Cut)

As indicated on the map, Parcel 2A is comprised of bottom land of the Willamette River between ordinary low water. Parcel 2B is riverbed between ordinary high and ordinary low water on the right bank of the river. Parcel 2C is riverbed between the ordinary high water and ordinary low water on the left bank of the river. The trial court made the following findings of fact concerning the area within the Fischer Cut:

'1. Fischer Island from 1853 to 1909 was a peninsula-like formation around which the Willamette River coursed.

'2. By 1890 a clearly discernible overflow channel over the neck of the peninsula had developed known as Fischer Cut.

'3. In 1890 Fischer Cut would have had to be cleared of driftwood and willow growth before it could possibly accommodate the flow of the river. The Fischer Cut Channel was dry at low water, or below the five-foot stage, and carried water only at intermediate or high stages of the river.

'4. In January of 1906 the Fischer Cut Channel was in practically the same location as it was in 1890. It was estimated then that roughly one-quarter of the flow of the river was carried through Fischer Cut.

'5. Between 1890 and 1909 the high water overflow through Fischer Cut did not sufficiently clear Fischer Cut to allow for the full flow of the river and the river continued to flow around Fischer's Island during that period.

'6. As the result of a flood of November 25, 1909, the river suddenly and with great force and violence converted Fischer Cut into the main channel of the river.

'7. The change was not gradual and imperceptible but was a rapid and violent change of course, avulsive in character and constituted an avulsion.

'8. Parcels 2A, 2B and 2C combined are included in the area known as Fischer Cut.'

The state argues that ownership of the entire Fischer Cut area passed to the state by virtue of its sovereignty over navigable waters regardless of the manner of the formation of the cut. It also argues that regardless of the state's sovereignty title to the Fischer Cut river bottom passed to the state because the Fischer Cut did not result...