NORTHWEST STEELHEADERS ASS'N v. Simantel

• Decision Date: 11 May 2005
• Citation: 199 Or. App. 471,112 P.3d 383
• Court: Oregon Court of Appeals
• Parties: NORTHWEST STEELHEADERS ASSOCIATION, INC., an Oregon nonprofit corporation; Raymond D. Dezellem; and Richard "Rick" Allen, Respondents, v. David SIMANTEL, Tammy Simantel, and William Wyatt, et al, Defendants, and David Schlecht, Sarah Schlecht, and Miani, Williamson & Evans, Appellants, and State of Oregon, by and through the Oregon State Land Board, Respondent, and Robert Jon Grover, Intervenor-Appellant.

112 P.3d 383

199 Or. App. 471

NORTHWEST STEELHEADERS ASSOCIATION, INC., an Oregon nonprofit corporation; Raymond D. Dezellem; and Richard "Rick" Allen, Respondents, v. David SIMANTEL, Tammy Simantel, and William Wyatt, et al, Defendants, and David Schlecht, Sarah Schlecht, and Miani, Williamson & Evans, Appellants, and State of Oregon, by and through the Oregon State Land Board, Respondent, and Robert Jon Grover, Intervenor-Appellant.

99C12309; A118737.

Court of Appeals of Oregon.

Argued and Submitted December 20, 2004.

Decided May 11, 2005.

Gordon R. Hanna, Salem, argued the cause and filed the briefs for appellants.

Michael T. Garone, Portland, argued the cause and filed the briefs for intervenor-appellant. With him on the briefs were David F. Bartz, Jr., Carson D. Bowler, Portland, and Schwabe, Williamson & Wyatt, P.C.

Melissa Powers argued the cause and filed the brief for respondents Northwest Steelheaders Association, Inc., Raymond D. Dezellem, and Richard "Rick" Allen.

Denise Fjordbeck, Assistant Attorney General, argued the cause for respondent State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ORTEGA, Judge, and DEITS, Judge pro tempore.

HASELTON, P.J.

Defendants¹ and intervenor appeal from a judgment that (1) declares that title to certain lands lying below the ordinary high water mark of the John Day River is held by the State of Oregon; and (2) rejects defendants' counterclaims for trespass. Defendants assign error to the denial of their motions to dismiss and for directed verdicts and to the trial court's determination that the segments of the river at issue are navigable under federal law for purposes of establishing title. Intervenor assigns error, inter alia, to the trial court's declaration of navigability. On the merits of the navigability question, we agree with the trial court that the segments of the John Day River at issue here were navigable at the time of statehood and, therefore, title to those segments passed to the State of Oregon at statehood. We also reject defendants' and intervenor's other assignments of error, as more fully discussed below. Accordingly, we affirm.

As discussed below, 199 Or.App. at 487-490, 490-493, 112 P.3d at 392-394, 394-395, the parties dispute the evidence, and the significance of evidence, regarding the historical use of the John Day River. However, the following facts are undisputed: The John Day River cuts a 280-mile path through the northern plateau of central Oregon. The John Day is the longest river in Oregon that runs entirely within the state, and it drains the fourth largest watershed in the state. The river's mean annual flow for the period of record is 1,959 cubic feet per second ("cfs"), as measured at Service Creek, approximately 20 River Miles upriver from the most upriver segment at issue here. Stream flows are generally highest in April, averaging over 5,000 cfs, and lowest in late summer, dipping to an average of 185 cfs in September, when diversions from the upper basin claim significant volumes for irrigation.² Such diversions, in addition to those for mining and other uses, began with the discovery of gold in the upper John Day River basin in 1862. Before that time, stream flows during some summer months were almost double their current volume.

In 1898, the United States granted a federal patent to the predecessors in interest of the Miani defendants. That patent purported to transfer title to all land within a metes and bounds description that spanned the course of the John Day River at approximately River Miles 133 to 135. In 1906, the federal government similarly conveyed title to land in the vicinity of River Miles 18 to 33 to the Simantels' predecessors in interest. The current warranty deed to the Simantel property states that it conveys certain land lying "north * * * [and][e]ast of the John Day River." All of the deeds held by defendants today contain language subjecting their titles to the "rights of the public and of government bodies." The parties stipulated at trial that a title officer would testify that nothing in the deeds or chain of title for the Schlecht, Simantel, or Miani defendants' properties grants use, occupancy, or ownership rights to plaintiffs Dezellem or Allen, members of the public, or the State of Oregon and that, "[i]f the rights of the public and the state of Oregon arise because the John Day River was navigable in fact in 1859, that fact would not appear in the title documents."

This action—raising the question of whether, in certain locations, the bed and banks of the John Day River are privately or publicly owned—was precipitated by an incident of alleged trespass. In September 1998, plaintiff Dezellem was cited for criminal trespass while fishing from the east bank of the John Day River at approximately River Mile 21, where the Simantels' property is located³ and across the river from the Schlechts' property. Although the criminal trespass charge was subsequently dismissed, in March 1999, Dezellem and Northwest Steelheaders filed this action seeking (1) a declaration of navigability and state ownership of the bed and banks of certain segments of the river and (2) an injunction barring defendants from excluding plaintiffs or other members of the public from using the waterway, bed, and banks of the river in those same locations.⁴ The Simantels asserted a counterclaim against Dezellem, in which they alleged that he had trespassed on their property while fishing from the bank of the river.

In June 2000, plaintiff Allen was threatened with prosecution for criminal trespass by an agent of the Miani defendants, as he fished from a sandbar in the middle of the John Day at approximately River Miles 133-135, where the Miani defendants own property known as the Burnt Ranch. Thereafter, Allen joined this action as an additional plaintiff, and the Miani defendants were joined as additional defendants. For their part, the Miani defendants alleged a trespass counterclaim against Allen. Ultimately, as alleged in the operative fifth amended complaint, plaintiffs sought a declaration that "the John Day River, as it passes the real property owned by the individual defendants, is navigable."

The case was tried in February 2002. Given the nature of the claims and counterclaims, the trial court empaneled a jury in a dual capacity — first, as trier of fact on the trespass counterclaims, and second, as an advisory jury with respect to "factual issues raised by plaintiffs['] * * * claims pertaining to the navigability" of the river.⁵ The jury returned a verdict that plaintiffs Dezellem and Allen were not liable for trespass, and, in its advisory capacity, the jury rendered a finding that the John Day River is navigable in fact at the disputed locations.

After an independent review of the evidence and arguments, the trial court issued an opinion determining that the John Day River is navigable in the disputed locations. The trial court subsequently entered judgment against the Simantels and the Miani defendants on their trespass counterclaims and declared that, as a result of its navigability determination, title to lands lying below the ordinary high water mark of the river at the relevant locations had vested in the State of Oregon at the time of statehood.

On appeal, the parties reiterate the arguments made to the trial court. At the outset, we address a threshold matter that pertains only to the Schlechts. Before the trial court, the Schlechts moved to dismiss all claims against them, alleging a lack of a justiciable controversy. They asserted that because they were not involved in the trespass incident that gave rise to this case, any adjudication as to them would implicate only "hypothetical questions that may never arise." The Schlechts later renewed those arguments by way of a motion for a directed verdict, arguing that any declaration would be purely advisory as to them and their property "because [there are] no facts in dispute that affect[] them." The trial court denied both motions. On appeal, the Schlechts assign error to those rulings.

As relevant to those assignments of error, testimony at trial established the following facts: The Schlechts and Simantels own property on opposite sides of the John Day River near McDonald's Crossing at River Mile 21 (i.e., approximately 21 miles upstream from the mouth of the John Day). The Schlecht property is on the west (Sherman County) side of the river, while the Simantel property is on the east (Gilliam County) side of the river. Both properties were managed by defendant David Simantel, who lived in a house on the Schlecht property and who collected fees for access to the entire area. On September 26, 1998, plaintiff Dezellem, who had entered the area via land owned by the federal Bureau of Land Management, was fishing from the east bank of the river in the vicinity of the Simantel property and opposite the Schlecht property. David Simantel approached Dezellem and told him that the whole area was private property and that he would have to leave. When Dezellem refused to do so, Simantel contacted the local sheriff, who issued Dezellem a citation for criminal trespass. That citation was subsequently dismissed.

On appeal, the Schlechts contend that "there is no allegation nor proof of any justiciable controversy" between any plaintiff and themselves because (1) Dezellem was excluded from the Simantels' property, not the Schlechts'; and (2) neither David nor Sarah Schlecht directed Simantel to exclude Dezellem. That is, it was Simantel, and not the Schlechts, who took action to exclude Dezellem from the Simantels' side of the river. Thus, the Schlechts contend, any declaration would be merely, and impermissibly, advisory as to them and their property.

ORS 28.110 requires that, in an action seeking declaratory judgment, all persons be joined as parties...