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

Decision Date12 June 1975
PartiesSTATE of Oregon acting By and Through the STATE LAND BOARD, Respondent-Cross- Petitioner, v. CORVALLIS SAND AND GRAVEL COMPANY, and Oregon Corporation, Petitioner.
CourtOregon Supreme Court

Robert Mix, Corvallis, argued the cause and filed the briefs for petitioner.

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

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

This is an action in ejectment brought by the state pursuant to ORS 105.005 et seq. The state sought to obtain possession of the Willamette riverbed in the Corvallis area and damages for the reasonable value of the defendant's use of portions of that riverbed. The trial court awarded to the defendant certain portions of the riverbed within an area known as Fischer Cut and awarded other disputed portions to the state. Both parties appealed the judgment of the trial court to the Court of Appeals. The Court of Appeals affirmed the trial court's division of the parcels of land involved but reversed the trial court's award of damages for defendant's use of an area known as Parcel 3.

The history of this litigation and the numerous legal and factual issues are set forth in the opinion of the Court of Appeals, Land Bd. v. Corvallis Sand & Gravel, Or.App., 99 Adv.Sh. 1532, 526 P.2d 469 (1974). We agree with the Court of Appeals that there was substantial evidence in the record to support either the theory that Fischer Cut of the Willamette was formed by an 'avulsive' process or by the 'exception to the accretion rule' process as described by the federal court in Commissioners v. United States, 270 F. 110, 113--14 (8th Cir. 1920). We accepted defendant's petition for review solely on the question concerning the length of the Fischer Cut area through which the Willamette River has coursed since a major flood in 1909.

The trial court made the following findings regarding 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.

'* * *.

'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.

'* * *.

'6. As a 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.

'* * *.'

The trial court awarded Parcels 2A, 2B and 2C to the defendant. Those parcels lie between the lines of ordinary high water and encompass a riverbed distance of 1250 feet. In addition to this award, the trial court added to the length of riverbed awarded to the defendant the area downstream from the end of Parcels 2A, 2B and 2C to the confluence of the East River Channel and the Willamette River. This area came from part of Parcel 3 and was made, as the state conceded at oral argument, on the basis of the statutory grants available to riparian owners between 1874 and 1878.

On appeal to this court, the state maintains that the trial court's findings regarding the length of Fischer Cut are correct. However, Corvallis Sand & Gravel contends that Fischer Cut is 3200 feet in length and that the trial court's finding of the length of the Cut is not supported by the evidence.

The evidence concerning the length of Fischer Cut consists of various documents and testimony. The asserted 1250-foot length of Fischer Cut coincides with the linear riverbed distance of Parcels 2A, 2B and 2C which the state first claimed in its 1969 complaint. The state argues that portions of the Fischer Cut area eroded away between 1890 and the 1909 flood. At trial, the state's expert witness, Ronald McReary, utilized a 1936 aerial photograph to point out an alleged cutbank on the upstream side of Parcels 2A, and 2B, thus suggesting that the Cut was only 1250 feet long. The state also relied upon the testimony of one of its witnesses, Fred Fischer, who, as a boy, roamed through the area of Fischer Cut and who testified that the Willamette River moved east and took several acres of land with it. However, ...

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6 cases
  • Oregon State Land Board v. Corvallis Sand and Gravel Company Corvallis Sand and Gravel Company v. Oregon State Land Board
    • United States
    • U.S. Supreme Court
    • 12 Enero 1977
    ... ... main channel is wrought during many years by the gradual or occasional increase from year to year of the proportion of the waters of the river passing over the course which eventually becomes the new main channel, and the decrease from year to year of the proportion of its waters passing through the old main channel until the greater part of its waters flow through the new main channel, the boundary line between the estates remains in the old channel subject to such changes in that channel as are wrought by erosion or accretion while the water in it remains a running stream ... ' " 18 ... ...
  • State By and Through State Land Bd. v. Corvallis Sand & Gravel Co.
    • United States
    • Oregon Supreme Court
    • 1 Agosto 1978
  • SDS Lumber Co. v. Allendale Mut. Ins. Co.
    • United States
    • U.S. District Court — District of Oregon
    • 6 Mayo 1983
    ...ex rel. State Land Board v. Corvallis Sand & Gravel Co., 18 Or.App. 524, 556-57, 526 P.2d 469, 484-85 (1974), aff'd as modified, 272 Or. 545, 536 P.2d 517, 538 P.2d 70 (1975), vacated and remanded, 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), remanded, 283 Or. 147, 582 P.2d 1352 (1978......
  • State Land Bd. v. Heuker
    • United States
    • Oregon Court of Appeals
    • 19 Abril 1976
    ...Bd. v. Corvallis Sand & Gravel, 18 Or.App. 524, 536--37, 540--41, 526 P.2d 469 (1974), Aff'd as modified, 75 Or.Adv.Sh. 2068, 75 Or.Adv.Sh. 2562, 536 P.2d 517, 538 P.2d 70 (1975). The issues in this case are which party owns the private title to the tideland strip and whether a permanent in......
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