Purvine v. Hathaway
| Decision Date | 17 June 1964 |
| Citation | 238 Or. 60,393 P.2d 181 |
| Parties | Julius E. PURVINE and Phyllis C. Purvine, Appellants, v. Earl B. HATHAWAY and Stella Irene Hathaway, Respondents. |
| Court | Oregon Supreme Court |
Robert Mix, Corvallis, argued the cause and submitted briefs for appellants.
LaVerne M. Johnson, Corvallis, argued the cause for respondents. On the brief were Thomas & Johnson, Corvallis.
Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE and LUSK, JJ.
This is a suit in equity brought under ORS 105.705 to establish a boundary line between the lands of plaintiffs and defendants. Plaintiffs appeal from an adverse decree.
The land in dispute borders on the Willamette river. Defendants rest their claim to the land in question upon two grounds: (1) that the land consisted of accretions built up by the gradual movement of the river; (2) that title was acquired by adverse possession through actual possession of all the land or by adverse possession of a part of the land coupled with color of title.
Originally the Willamette river flowed in two principal channels, one to the west and the other to the east of the Hogue Donation Land Claim. These two channels were connected by a stream 66 feet in width known as Hogue creek. In 1869, when the water flowed as just described, Hogue conveyed the northerly part of his claim using Hogue creek as the south boundary of the tract conveyed. Plaintiffs derive their title through that conveyance. In 1876 Hogue conveyed the remaining portion of his claim to the south of Hogue creek. Defendants derive their title through this latter conveyance. In the winter of 1874 the flow of the water in the Willamette river system near the Hogue Donation Land Claim changed markedly. The change is described as follows in the stipulation of facts agreed upon by the parties.
'In the winter of 1874 and 1875 there were high waters in the Willamette river system and when the high water went down and thereafter a substantial volume of the water that had previously gone down 'East River' went through 'Hogue Creek' and after that winter East River carried a substantially lower volume of water and the main volume of 'East River' went through 'Hogue Creek'.
Plaintiffs' position is that when the waters of the 'East River' suddenly 'broke through' Hogue creek the latter stream, having been obliterated and replaced by the Willamette river, could no longer be regarded as a moving boundary. Therefore, it is argued, as the Willamette river moved after the breakthrough the former thread of Hogue creek continued to mark the boundary between the plaintiffs' and defendants' land. In support of their position plaintiffs rely upon the principle of avulsion under which it is held that when a boundary stream suddenly changes its course the boundary is not marked by the new course of the stream but remains as it existed prior to the sudden change.
We do not regard the principle of avulsion as applicable to the present case. Here there was no sudden change in the course of Hogue creek, the boundary stream; the stream merely increased in volume. With its increased volume Hogue creek flowed within new banks and in this sense the water flowed in a new course. But the principle of avulsion has not, as far as we have been able to ascertain, ever been applied when the sole change in the course of the stream involves simply an extension of its banks by the sudden influx of water.
The important consideration, however, is not whether the principle of avulsion has been applied to facts such as we have before us, but whether the underlying theory supporting that principle is applicable here. Neither the cases not texts offer much enlightenment as to why the sudden shift of the course of a boundary stream does not result in a change of the boundary, whereas a gradual shift of the stream causes the boundary to move along with it. It has been suggested that 'in...
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Sea River Props., LLC v. Parks
...has frequently recognized and adhered to that principle. Corvallis Sand & Gravel, 283 Or. at 161, 582 P.2d 1352; Purvine v. Hathaway, 238 Or. 60, 64–64, 393 P.2d 181 (1964); Sause, 217 Or. at 82, 342 P.2d 803; Hoff v. Peninsula Drainage Dist., 172 Or. 630, 638–39, 143 P.2d 471 (1943); State......
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State By and Through State Land Bd. v. Corvallis Sand & Gravel Co.
...has on occasion stressed the importance of access to the water. 18 However, as Justice O'Connell pointed out in Purvine v. Hathaway, 238 Or. 60, 63-64, 393 P.2d 181, 183 (1964), the influence of that concern has its limits. In that case we placed particular stress on the reliable ascertainm......
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State, By and Through State Land Bd. v. Corvallis Sand & Gravel Co.
...See, Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912).5 The state relies heavily upon Purvine v. Hathaway, 238 Or. 60, 393 P.2d 181 (1964), to support its position that this change was not avulsive in nature. First, it should be noted that federal common law cont......
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Lethin v. United States
...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 If the location of the stream at the time ......
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Chapter § 60.3 RESOLVING DISPUTES BY LITIGATION
...under ORS 105.705 to 105.725: This is a special statutory method of resolving boundary problems. See Purvine v. Hathaway, 238 Or 60, 393 P2d 181 (1964) (accretion of river); Jensen v. Westenskow, 225 Or 189, 357 P2d 383 (1960). See also § 60.3-3 to § 60.3-3(c). It includes a procedure for d......