536 P.2d 517 (Or. 1975), State By and Through State Land Bd. v. Corvallis Sand & Gravel Co.

Citation:536 P.2d 517, 272 Or. 545
Party Name:STATE of Oregon acting By and Through the STATE LAND BOARD, Respondent-Cross- Petitioner, v. CORVALLIS SAND AND GRAVEL COMPANY, and Oregon Corporation, Petitioner.
Case Date:June 12, 1975
Court:Supreme Court of Oregon
 
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Page 517

536 P.2d 517 (Or. 1975)

272 Or. 545

STATE of Oregon acting By and Through the STATE LAND BOARD,

Respondent-Cross- Petitioner,

v.

CORVALLIS SAND AND GRAVEL COMPANY, and Oregon Corporation, Petitioner.

Supreme Court of Oregon.

June 12, 1975

Argued and Submitted April 3, 1975.

Page 518

[272 Or. 546] 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 [272 Or. 547] 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.

'* * *.

Page 519

'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[272 Or. 548] at oral...

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