Port of Portland v. Reeder

• Jurisdiction: Oregon
• Parties: THE PORT OF PORTLAND, a municipal corporation, Respondent, v. L. M. REEDER, Victor Acenzi, James McClure, Harry Hilliard, John Seylor, Harold Varney, Thomas White, Gene O'Connor, Jack Hughes, Audis Johnson, Vera Houseworth, Charles Avart, Carolyn Chaussee, A. E. Arnold, Archie Taylor, Ronald Rosebrook, John Kyser, William Brown, Johnny Stark, Wally Hunt, Francis Angelo, Floyd East, Nadine Campbell, Alvin Barrier, Charles Brown, John Bowers, Morris Foss, Charles Heglund, Pick Pickens, Ethel Deems, Ted Boyington, Charles Lee, Frank Schafer, Lester Coons, Jack Davis, Jake Ronning, and Lela Allison, John Doe, Jane Doe, Richard Roe and Ruth Roe, and all others similarly situated, Appellants.
• Citation: Port of Portland v. Reeder, 280 P.2d 324, 203 Or. 369 (Or. 1955)
• Court: Oregon Supreme Court
• Decision Date: 23 February 1955

Page 324

280 P.2d 324

203 Or. 369

THE PORT OF PORTLAND, a municipal corporation, Respondent, v.L. M. REEDER, Victor Acenzi, James McClure, Harry HilliardJohn Seylor, Harold Varney, Thomas White, Gene O'ConnorJack Hughes, Audis Johnson, Vera Houseworth, Charles AvartCarolyn Chaussee, A. E. Arnold, Archie Taylor, Ronald Rosebrook, John Kyser, William Brown, Johnny Stark, Wally Hunt, Francis Angelo, Floyd East, Nadine Campbell, Alvin Barrier, Charles Brown, John Bowers, Morris Foss, Charles Heglund, Pick Pickens, Ethel Deems, Ted Boyington, Charles Lee, Frank Schafer, Lester Coons, Jack Davis, Jake Ronning and Lela Allison, John Doe, Jane Doe, Richard Roe and Ruth Roe, and all others similarly situated, Appellants.

Supreme Court of Oregon, En Banc.

Argued and Submitted Oct. 12, 1954.

Decided Feb. 23, 1955.

William F. White, Portland, argued the cause.White, Sutherland & Parks, and Thomas J. White, Portland, and Paul M. Reeder, Hillsboro, on the brief for appellants.

Erskine Wood, Portland, argued the cause.Wood, Matthiessen, Wood & Tatum, Portland, on the brief for respondent.

BRAND, Justice.

The plaintiff Port of Portland brings this suit to enjoin the maintenance by the defendants of houseboats and moorage structures on the river side of a harbor line established by the Port along the northeasterly bank of the Willamette River at the Swan Island Basin.Defendants contend that the Port Ordinance establishing the harbor line is invalid and that the defendants have property rights which cannot be destroyed without just compensation.They allege that they are the owners of certain land, without describing it, with structures thereon 'consisting of piling, dolphins, boardwalks, boat hoists, piping, etc., located on said defendants' land, and extending out to the navigable waters of the Willamette River * * *.'To these structures houseboats are moored.

After trial upon the merits the court issued a decree enjoining the defendants from maintaining the moorage and other structures and houseboats outside of the line established by the Port.The ownership of land by the Reeders on the east bank of the river is not disputed.

The defendant Reeder and wife are the grantees in a deed which purports to convey to them real property in the city of Portland, county of Multnomach, and lying within the boundaries of the Port of Portland, a public corporation.The real property therein described is adjacent to the Willamette River, the southerly or southeasterly boundary line being described as running to and along the harbor line as established by the United States Government Engineers.The deed bears date of 4 November 1946.The deed recites that it is 'subject to the right, title and interest of the State of Oregon in and to that portion of said premises lying below the line of ordinary low water in the Willamette River and of ordinary high water of the navigable portion, if any, of Mock's Slough.'The said land lies on the east or right bank of the river and the defendants Reeder have for some years maintained a moorage for houseboats in the river in front of said land and adjacent lands.The defendants other than Reeder and wife are the owners or occupants of houseboats or similar structures moored at the said moorage claimed by the defendants Reeder.Unless otherwise indicated, we shall refer to the Reeders as the defendants.

The Willamette River is a navigable stream which flows into the Columbia River and thence to the ocean.The defendants' land lies on the right bank and fronts upon the so-called Swan Island Basin for a claimed distance of 800 feet.It lies along the outer radius of a sharp left turn in the river and just off the downriver end of Swan Island.The bend in the river is at the entrance from the main river to the Port of Portland Drydock and Ship Repair Basin.

In 1942 the shipyard and drydock were built by Henry Kaiser at the foot of Swan Island.Thereafter the Port of Portland acquired the facilities.Since then the Port has built a finger pier out from the downriver end of the island.The immense importance of the Swan Island Basin and of the improvements thereon, owned and operated by the Port, can be seen from the fact that between July 1, 1951 and June 30, 1952, 106 vessels entered the drydocks and 209 other vessels entered the Basin, making a total of 315 vessels which entered and left the Basin.Thus there were 630 passages in or out thereof in one year.These vessels varied in size from 100 feet to 523 feet in length.The distance across the narrowest part of the channel is 520 feet.The ships are maneuvered into the Basin or the drydocks by the aid of a tow boat lashed to the stern of the ship, so that in the case of large seagoing vessels, the combined length of the ship and the stern-wheeled tow boat is from 623 to 648 feet.Other and smaller tug boats are sometimes required to aid in maneuvering the ships.These facts are convincingly illustrated by photographic exhibits introduced by the plaintiff.The distance at the narrowest point between the harbor line on Swan Island and the newly established harbor line on the right bank of the river in front of the Reeders' property is approximately 600 feet.The relative position of the lower end of Swan Island with its pier and other facilities, on the one hand, and the easterly bank of the river with the defendants' moorage facilities and houseboats, on the other, is indicated by the picture which is here reproduced from a photograph introduced in evidence by the defendants.

Exhibit 10 is a large chart showing Swan Island and the piers extending therefrom; the land of the defendants Reeder on the right bank; the high-water line on the date that the survey was made; the harbor line established by the Port; the harbor line established by the United States Engineers; and the houseboats.The evidence does not fix the ordinary high-water line fronting defendants' property.In the season of the spring run-off, high water extends landward further than shown on the survey, and at dry seasons, high-water line lies more riverward than shown by the survey.The harbor line established by the Port substantially coincides with the high-water line as surveyed on 21 February 1952.Since we cannot determine from the evidence where the ordinary high water line lies, Taylor Sands Fishing Co. v. State Land Board, 56 Or. 157, 108 P. 126;Sun Dial Ranch v. May Land Co., 61 Or. 205, 119 P. 758, we cannot determine whether the harbor line cuts across lands above the ordinary high-water line.It is clear, however, that the harbor line established by the Port was surveyed, as is usual, with official meander lines.While it substantially conforms to the high-water line of 21 February 1952, it does not follow every curve and sinuosity of the water line.The defendants complain that it appears to run in part over high ground, and to a slight extent this may be possible, but we do not construe to be the intention of the Port to impose any limitations upon the right of defendants to use any part of their land, if in fact it is above ordinary high-water line.Nor is there any intention to exclude the defendants from access to the river.What we shall call the United States Harbor Line runs riverward from the Port's line, the distance between the two lines varying from zero to 150 feet.The result of the removal of the defendants' houseboats and structures and the clearing of all obstructions between the two lines and back as far as the Port line would be to widen the unobstructed area at the bend of the river by distances from zero to 150 feet.The survey upon which Exhibit 10 is based establishes that the houseboats now lie on the river side of the United States Harbor Line, though the dolphins, piles, etc., are chiefly, if not wholly, maintained landward of the United States line and riverward of the Port line.It would be lawful but impractical to build or use a dock from the defendants' upland if it terminated at the Port Harbor Line, unless dredging were done at the end of the dock.However, the widening of the river by the establishment of the new harbor line implies that the widened channel will be rendered fit for navigation.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence indicates that strong winds frequently make difficult the maneuvering of the vessels within the limited area of the Basin.Even the defendants admit 'that some damage has occurred to some of the said houseboats and other structures due to vessels attempting to enter or leave said drydock or basin.'We think that if there is danger to houseboats from the ships, it is reasonable to infer that there is also danger to the ships from houseboats and other structures, or at least, that they constitute obstructions and a menace to navigation.

We have examined all of the testimony with care and are convinced that the Port authorities were supported by substantial evidence and did not act arbitrarily in determining that the houseboats and moorage facilities constituted in point of fact both a hazard to and an obstruction of navigation.We shall not further discuss the evidence upon this point.

The following facts relevant to the issue are set forth in chronological order:

1904 or prior thereto.United States Army Engineers established the United States Harbor Line.

1937.The Secretary of War gave a permit to the predecessors in title of the defendants.The application was for the approval of plans for 'an existing boat hoist [piling] channelward of the established harbor line * * * in the Willamette river lower.'At the top of the permit the following statement is made:

'Note.--It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal State,...