Bonnett v. State By and Through Div. of State Lands

• Decision Date: 05 November 1997
• Parties: Charles A. BONNETT, Jr., Appellant, v. STATE of Oregon By and Through the DIVISION OF STATE LANDS, Respondent, and Driftwood Shores, Inc., a dissolved Oregon corporation; Jakie L. Mann; Elsie Mann; and Robert G. Dallman, Trustee under MBL Trust; All Other Persons or Parties Unknown Claiming Any Right, Title, Claim, Lien or Interest in the Property Described in the Complaint, Defendants. 16-95-02466; CA A93571.
• Court: Oregon Court of Appeals

Page 735

949 P.2d 735

151 Or.App. 143

Charles A. BONNETT, Jr., Appellant, v. STATE of Oregon By and Through the DIVISION OF STATE LANDS, Respondent, and Driftwood Shores, Inc., a dissolved Oregon corporation;

Jakie L. Mann; Elsie Mann; and Robert G. Dallman, Trustee

under MBL Trust; All Other Persons or Parties Unknown

Claiming Any Right, Title, Claim, Lien or Interest in the

Property Described in the Complaint, Defendants.

16-95-02466; CA A93571.

Court of Appeals of Oregon.

Argued and Submitted June 12, 1997.

Decided Nov. 5, 1997.

Frederick A. Batson, Eugene, argued the cause for appellant. With him on the brief was Gleaves Swearingen Larsen Potter Scott & Smith LLP.

John T. Bagg, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiff is the owner of Government Lot 1, Section 9, Township 18 South, Range 12 West in Lane County (Lot 1). When it was originally surveyed in 1878, the western boundary of Lot 1 was partly on the northeast bank of the mouth of the Siuslaw River and partly on the Pacific Ocean. In this action, plaintiff seeks to quiet title to a large amount of land that has developed west of Lot 1 since the original survey (the new land). Plaintiff took defaults against all defendants except the state. The state asserts that the land in issue first arose on state-owned tidelands west of Lot 1. As a result, the state argues, the new land did not accrete to Lot 1 and plaintiff has no title to it. After a trial, the court determined that it could not decide how the land had formed and that plaintiff, therefore, had failed to carry his burden of proof. Plaintiff appeals; we review de novo, ORS 19.125(3), and affirm the judgment.

The facts of this case involve events that occurred a century ago and that were not the focus of anyone's attention when they happened. Much of the relevant evidence comes from maps and other materials that were produced for purposes only tangentially related to the issues before us. Resolving the factual issues requires us to consider both the scientific question of how land generally forms on the ocean shore and the historical question of what happened in this specific case. We have carefully reviewed the record, including the testimony and the related exhibits, and find, by a preponderance of the evidence, that the following facts are correct. An exhaustive discussion of the reasons for our findings would be of no benefit to the parties, the bench, or the bar. For that reason, we state our findings without elaboration except for one or two crucial points. ¹

The Siuslaw River enters the Pacific Ocean west of Florence. Before the erection of jetties in the 1890s and early 1900s, the main channel of the river moved back and forth across a wide, sandy mouth. At times there were two channels, sometimes with an island between them. Much of the area in the mouth outside of the channels was exposed at low tide.

In 1878, the time of the official survey, the main channel of the river followed a bluff that ran north and northwest along the river's mouth and, thereafter, ran along and parallel to the ocean. The main channel met the ocean at a point along the western edge of Lot 1, which was at the eastern edge of the area over which it normally wandered. The permanent dry land on the opposite bank of the river ended at the southerly limit of the river's normal wanderings, over a mile south of that point. There is no direct evidence of the nature of the area directly across the river from Lot 1 in 1878 or whether there was a secondary channel at that time. It is clear that there was no island in the river's mouth. Records concerning the area at other times make it probable that a significant portion of the opposite side of the 1878 channel would have been dry at low tide.

The bluff that bordered the 1878 channel was a short distance west of the western edge of section 10. Thus, in 1878 there was only a small part of Section 9 for the surveyor to survey. He therefore divided what existed of the section into four government lots, running north and south along the bluff. Lot 1 was the northernmost, with lots 2, 3, and 4 successively south of it. For each lot the eastern, northern, and southern boundaries were fixed lines, while the western boundary was a meander line that followed the bluff. In lots 4 and 3 the bluff generally runs from south to north. Partway through lot 2 it turns to the northwest. In Lot 1 the bluff, and thus the meander line, runs from southeast to northwest. Both continue in that direction well into Section 4, which is directly north of Section 9. Near a place in Section 4 designated in later maps as "Northpoint" the meander line turns due north again.

By the early 1880s the main channel of the river had moved south, away from Lot 1; there was also the beginning of a secondary channel farther south, near the river's permanent southwestern bank. At the same time, a sand spit had formed near Northpoint and moved south, cutting the original Lot 1 off from the ocean. The spit was attached to the upland at Northpoint, but before it reached Lot 1 it moved away from the bluff and grew exclusively on the tidelands that formerly constituted the opposite side of the main channel of the river. As a result of these changes, the former main channel south of Lot 1 had become an isolated lagoon. Along Lot 1 at the base of the bluff was a narrow lowland that was probably covered with water, at least in wet seasons, and that divided Lot 1 from the new sand spit.

The sand spit grew over the following years, moving south towards the river's newer channels. In doing so, it generally followed the west side of the 1878 main channel. In the vicinity of Lot 1, the spit was close to the bluff from the beginning but may also have moved east to fill in some of that area. Around the turn of the century, the Army Corps of Engineers built jetties that created a new, fixed channel of the river near the southern end of its previous wanderings. As a result of the jetties' interference with the normal seasonal movement of sand, the spit grew rapidly to the west and also filled in most of the places between the spit and the north jetty. The spit thus became a permanent addition west of the bluff, rather than a temporary aspect of the river's wanderings.

After this creation of new land from the spit, the lagoon along the former channel south of Lot 1 remained (and remains), while the area directly in front of Lot 1 at the base of the bluff is now relatively low-lying, densely vegetated, and has damp, marshy soil. Since the introduction of European eel grass in the 1940s, the rest of the area west of Lot 1 consists of dunes that have become stabilized and heavily vegetated. The low area at the base of the bluff still makes it possible to distinguish the new land from the original Lot 1.

This description of how the land west of Lot 1 formed is the foundation for the legal conclusions that we reach. We base that description on a number of factors. It is undisputed that a sand spit formed, growing southward, when the river channel moved south after 1878. That is what contemporary maps show, and it is consistent with how sand moves along the Oregon coast. It is also clear that, ever since then, there has been a lagoon in a portion of the former channel that is south of Lot 1, showing that, at least in that area, the spit grew west of the former channel. Maps based on 1883 surveys show a narrow but distinct low area between the bottom of the bluff at the west edge of Lot 1 and the sand spit that had grown in front of it. That low area appears to have played the same role in front of Lot 1 that the lagoon played in the area to the south--it separated the bluff from the newly formed sand.

Later maps generally give less detailed attention to the area in front of Lot 1. However, aerial photographs over the last 60 years clearly show the bluff, the lagoon, and the low land at the base of the bluff north of the lagoon. They, together with testimony concerning the current terrain below the bluff, show that it is still possible to discern a division line between the new sand dunes west of Lot 1 and the old land, from the base of the bluff east, that existed at the time of the 1878 survey. Testimony also shows that that area is, even now, particularly wet and marshy and, at least at times, is covered with water. The division between the bluff and the new land, thus, has existed since the river moved away from the bluff. It leads us to conclude that the new land grew from the north to the southeast, with the old channel separating it from the bluff.

We find, thus, that the land in question was created by a process that began with the creation of a sand spit on tidal lands west of Lot 1 and then continued as the spit grew by accretion so that, on its eastern side, it approached Lot 1 on the east and, on its western side, reclaimed substantial tidal and ocean lands. ²

Plaintiff argues that he is entitled to the new land west of Lot 1 because of his rights as a riparian or littoral ³ owner. He relies on the rule that, when land borders a body of water, a grant of that land conveys to the edge of a navigable waterway or to the thread of a nonnavigable stream. The meander line that a surveyor may use to approximate the riparian boundary is not itself the precise boundary. Rather, the purpose of a meander line is to make it possible to calculate the acreage of the parcel for purposes of sale. The water, not the meander line, is the true boundary. The crucial point for this case is that the actual boundary moves as the waterway's course changes through the gradual processes of accretion, reliction, and erosion. See Allison v. Shepherd, 285 Or. 447, 453, 591 P.2d 735 (1979); Morse Bros., Inc. v. Wallace, 78...