Lethin v. United States

• Citation: 583 F. Supp. 863
• Decision Date: 28 March 1984
• Docket Number: No. Civil Action 83-188-PA.,Civil Action 83-188-PA.
• Parties: Ronald R. LETHIN and Beverly M. Lethin, husband and wife, and Clarke R. Lethin, David D. Lethin, Douglas T. Lethin and Molly L. Lethin, children, as tenants in common, doing business as Ronald R. Lethin and Company, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

583 F. Supp. 863

Ronald R. LETHIN and Beverly M. Lethin, husband and wife, and Clarke R. Lethin, David D. Lethin, Douglas T. Lethin and Molly L. Lethin, children, as tenants in common, doing business as Ronald R. Lethin and Company, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. Civil Action 83-188-PA.

United States District Court, D. Oregon.

March 28, 1984.

COPYRIGHT MATERIAL OMITTED

David A. Rhoten, Rhoten, Rhoten & Speerstra, Salem, Or., W. Louis Larson, Larson & Fischer, Astoria, Or., for plaintiffs.

Charles H. Turner, U.S. Atty., William B. Borgeson, Asst. U.S. Atty., Portland, Or., for defendant.

OPINION AND ORDER

PANNER, District Judge.

Plaintiffs brought this action against the United States to quiet title to real property located along the south bank of the Columbia River in Hammond, Oregon. Title 28 U.S.C. § 1346(f) confers jurisdiction. Trial was to the court. I hold that plaintiffs have title in fee simple to the disputed property, but that defendant maintains an easement across the land for the general purpose of gaining access to the river.

I. BACKGROUND.

On February 29, 1887, Bartholomew and Rachel Kindred conveyed to the United States a parcel of land to be used to establish a Life Saving Station. This grant included upland property and tideland area between the high and low water marks on the south bank of the Columbia River, together with a right of egress and ingress in any direction over the grantors' land "for the purpose of carrying out the intentions of Congress in establishment of Life Saving Stations." The Life Saving Service subsequently built the Point Adams Life Saving Station on the property conveyed by the Kindreds.

In approximately 1905, the United States exercised its right of way by constructing a wooden walkway to the Columbia River from its property in a northerly direction over property owned by Hammond Lumber Company. Hammond Lumber acquired its property in 1904 from one of the Kindreds' successors in interest. Hammond Lumber is plaintiffs' predecessor in interest.

In 1907, the United States and Hammond Lumber agreed that the United States would relocate its right of way by moving its walkway to a position leading in a northeasterly direction at right angles to the Columbia River. The relocation of the right of way was to permit Hammond Lumber to construct a railroad on the adjoining property. In return, Hammond Lumber agreed to construct a new boathouse on the river for the Life Saving Service. Although correspondence between the United States and Hammond Lumber indicates that there was some discussion of a "conveyance" of the property, no such conveyance was ever executed. The agreement between the parties related only to the right of way, and not to title.

The United States Coast Guard eventually acquired use of the Point Adams Station as successor to the Life Saving Service.

In 1930 or earlier, a concrete sea wall was constructed on Coast Guard property at or above the then high water mark. In approximately 1944, the tideland area north of the Coast Guard property was filled with spoils from dredging of the Columbia River. This fill substantially altered the high and low water marks. The present high water mark is located approximately where the former low water mark was located. Between 1944 and 1946, the Coast Guard constructed the present walkway to the boathouse in a position slightly eastward of the prior construction.

In 1967, the Coast Guard decommissioned the Point Adams Station and transferred its boats and personnel to Cape Disappointment Station in Illwaco, Washington. The fact that the Coast Guard had discontinued its Life Saving Service at Point Adams was well-known in Hammond. In 1971, the Board of Survey of the Coast Guard recommended that the right of way, walkway, and boathouse be declared "excess to the needs of the Coast Guard." From 1968 to approximately 1977, the Coast Guard used one of the station buildings for telecommunications activity.

The National Marine Fisheries Service (NMFS), a federal agency, began using the Point Adams Station in approximately 1969. In 1972, ownership was transferred to that agency. NMFS continues to use the facility, maintaining a research laboratory. NMFS now uses the walkway to gain access to its research boats and to bring samples in from the river.

II. DISCUSSION.

The only property still at issue in this action is a triangular parcel between the east edge of the Coast Guard walkway and the west boundary of plaintiffs' property. A diagram (not to scale) showing the general area is appended to this opinion.

With respect to the disputed parcel, plaintiffs contend that the interest conveyed to defendant by the 1887 Kindred-United States deed was an easement for life saving purposes. Plaintiffs assert this easement was extinguished when the Coast Guard ceased to use the Point Adams Station for those purposes. Defendant, however, asserts that it is owner in fee simple of the disputed tract. This position is based on the theory that the dividing line between plaintiffs' and defendant's land is not as recited in the 1887 deed, but runs at right angles to the pierhead of the Columbia River, intersecting the boundary lines of the upland tracts at the high water mark as established in 1944. In the alternative, defendant argues that it acquired a prescriptive easement for the walkway, and ownership to the land by adverse possession.

This dispute arises from uncertainties created by the language of the 1887 Kindred-United States deed. It is complicated by the inevitable lack of certainty surrounding conveyances of riparian property, and the absence of clearcut rules for resolving disputes over boundaries to such properties.

A. Defendant's Claim Of Fee Simple Ownership.

Boundaries of riparian land are frequently designated with reference to the adjacent body of water. Because beds and shores of bodies of water tend to change location, the rule has developed that, where such changes are by accretion, the boundary will follow the water rather than remain where it was at the time of the original conveyance. State Land Board v. Corvallis Sand & Gravel, 283 Or. 147, 161, 582 P.2d 1352 (1978). Accretion is "a process of gradual and imperceptible additions of alluvial materials to lands bordering on a body of water." Avulsion and Accretion — Emphasis Oregon, 3 Willamette L.J. 345 (1965).

Several policy considerations underlie the rule regarding accretions. Oregon courts have particularly emphasized two considerations: protection of the upland owner's right of access to water, and the reliable ascertainment of boundaries. See, e.g., Corvallis Sand & Gravel, 283 Or. at 162, 582 P.2d at 1361; Purvine v. Hathaway, 238 Or. 60, 63-64, 393 P.2d 181, 183 (1964). With respect to the second consideration, the Oregon Supreme Court has explained:

If the location of the stream at the time of conveyance were regarded as the boundary in spite of the stream's imperceptible movement, as time passed the proof of the original location of the boundary line would, in most cases, be practically impossible. Such uncertainties in the identity of the original boundary line (ordinarily the unmarked thread of the stream) would be a fertile source of litigation. It is better, therefore, that the boundary be regarded as moving with the gradual movement of the river.

Corvallis Sand & Gravel, 283 Or. at 162, 582 P.2d at 1361, quoting Purvine v. Hathaway, 238 Or. at 63-64, 393 P.2d at 183.

There is an exception to the general rule, however, for changes caused by avulsion. Avulsion is a sudden change in the course or bed of a stream. Avulsion and Accretion — Emphasis Oregon, 3 Willamette L.J. at 347. When a boundary stream suddenly changes its course, the boundary does not change with the new course, but remains as it existed before the sudden change. Purvine, 238 Or. at 62-63, 393 P.2d at 183. Courts have reasoned that when a boundary stream suddenly forms a new course "the boundary formed by the original stream is identifiable by reference to the bed left dry as a consequence of the sudden shift in the stream." Id. at 64, 393 P.2d at 183. Thus, there is no need to alter the original boundary. The nature of the change that has occurred, rather than the time in which it occurred, appears to be the determinative factor. See, e.g., Purvine, supra.

The principles relating to accretion and avulsion are pertinent because the 1887 Kindred-United States deed designates certain boundaries by reference to the low water mark. That mark was substantially altered when the tidelands north of plaintiffs' property were filled in the early 1940's. The parties disagree about the effect of the fill on their respective boundaries. Plaintiffs contend that the rule for accretion applies, while defendant contends that the rule for avulsion applies.

In determining the boundaries of property fronting along the same bank of a river, the courts are guided by another general principle: absent agreement between the parties, the property should be divided so as to give each riparian owner a proportionate share of river frontage. With that purpose in mind, a court may choose among a variety of apportionment methods depending on the facts of the case. Tauscher v. Andruss, 240 Or. 304, 307 n. 1, 401 P.2d 40, 42 n. 1 (1965), citing Columbia Land Co. v. Van Dusen, 50 Or. 59, 91 P. 469 (1907).

Where the course of the river is fairly straight and the side lines of the riparian tract are perpendicular to the course of the river, the side lines are simply extended to the median line of the stream. Belmont v. Umpqua Sand & Gravel, 273 Or. 581, 588-89, 542 P.2d 884, 889 (1975). Where the side lines of the tract meet the stream at an acute angle, however, this method may deprive one of the riparian owners of access to deep water. Consequently, to fairly apportion such river frontage, the dividing lines may be drawn at right angles to the thread of the stream or...