Sea River Props., LLC v. Parks

• Decision Date: 05 December 2012
• Docket Number: A145896.,062011
• Citation: 297 P.3d 1,253 Or.App. 643
• Parties: SEA RIVER PROPERTIES, LLC, an Oregon limited liability company, Plaintiff–Appellant, v. Loren E. PARKS, an individual, Defendant–Respondent. Loren E. Parks, an individual, Third–Party Plaintiff, v. H. Robert Riley and Geneva Ruth Riley, both individually and as Trustees of the H. Robert Riley Trust and Geneva Ruth Riley Trust; Donald Lee Riley and Lee Ann Riley, husband and wife; David Robert Riley and Catherine Lou Riley, husband and wife, Third Party Defendants.
• Court: Oregon Court of Appeals

253 Or.App. 643

297 P.3d 1

SEA RIVER PROPERTIES, LLC, an Oregon limited liability company, Plaintiff–Appellant,

v.Loren E. PARKS, an individual, Defendant–Respondent.

Loren E. Parks, an individual, Third–Party Plaintiff,

v.H. Robert Riley and Geneva Ruth Riley, both individually and as Trustees of the H. Robert Riley Trust and Geneva Ruth Riley Trust; Donald Lee Riley and Lee Ann Riley, husband and wife; David Robert Riley and Catherine Lou Riley, husband and wife, Third Party Defendants.

062011; A145896.

Court of Appeals of Oregon.

Argued and Submitted Sept. 28, 2012.

Decided Dec. 5, 2012.

Robyn Ridler Aoyagi argued the cause and filed the briefs for appellant.

Carla Scott argued the cause for respondent. With her on the brief were Laura J. Walker, Gretchen S. Barnes, and Cable Huston Benedict Haagensen & Lloyd LLP.

Before ARMSTRONG, Presiding Judge, and BREWER, Judge, and DUNCAN, Judge.

BREWER, J.

Plaintiff appeals a judgment in which the trial court quieted title in favor of defendant Parks, based on adverse possession, to 40 acres of undeveloped land located in the coastal town of Nedonna Beach. The trial court's decision was premised on the intermediate conclusion that plaintiff was the record owner of the property based on the doctrine of accretion. Defendant cross-assigns error to that conclusion. Because we agree with defendant that plaintiff failed to establish that it was the record owner of the disputed property, we affirm, albeit on different grounds.

Adverse possession and quiet title claims are equitable in origin and, thus, traditionally were subject to mandatory de novo review on appeal. Fitts v. Case, 243 Or.App. 543, 545 n. 1, 267 P.3d 160 (2011). De novo review is now discretionary, but disfavored. ORS 19.415(3)(b); ORAP 5.40(8)(c). Despite the parties' requests that we review de novo parts of the trial court's decision with which they disagree, we decline to do so because it would be of little benefit to our resolution of the dispositive issues on appeal. Accordingly, we rely on the trial court's findings of fact that are supported by any evidence, and we review the court's conclusions for errors of law. D.H.S. v. Three Affiliated Tribes of Fort Berthold Reservation, 236 Or.App. 535, 541, 238 P.3d 40 (2010). Although the record in this case is voluminous, and the trial court rendered a lengthy and thoughtful written opinion, we recite only those facts that are necessary to explain our decision.

The disputed property is located near the confluence of the Nehalem River and the Pacific Ocean. The property is wild and undeveloped, consisting of sand, trees, and open meadow. There has been a dispute since 1975 as to who holds title to the property. That dispute is largely due to the fact that the land formed relatively recently—within the last century or so—by accretion. Accretion is a natural process by which the forces of wind and water create coastal or other riparian land. A map showing the current configuration and location of the disputed property (below the south jetty and to the west of Lot 4) and the Nehalem River channel is attached to this opinion as Appendix 1.

In the 1850s, the federal government commissioned a survey and subdivision of Oregon's coastal lands based on the Public Land Survey System (PLSS). The PLSS system of townships, sections, and government lots is used to describe property now in private ownership. Two sections created under that survey are at issue here: section 17 to the north and section 20 to the south. The sections are divided by an east-west section line that is the southern boundary of section 17 and the northern boundary of section 20. When they were originally platted, both sections' western boundary was the Pacific Ocean. As pertinent to this case, each section is divided into four lots, numbered starting at the north from one to four. Defendant owns section 17, Lot 4—that is, the southernmost lot of section 17. Plaintiff owns the “natural accretions” to the west of section 20, Lots 1 and 2. A survey map showing the configurations and locations of Lot 4, section 17, Lots 1 and 2, section 20, and the Nehalem River channel in 1858 is attached to this opinion as Appendix 2.

Before 1918, the Nehalem River was not in a fixed position, but rather alternated between two channels due to natural forces. The northern channel ended just north of Lot 4, section 17, as originally platted in 1858. During intervening years, the river moved into the southern channel, causing the development of additional tidelands to the west of both sections 17 and 20. Because the Nehalem bar was dangerous for ships, the federal government built a jetty to create a fixed channel for the river, which was completed in 1918, ultimately directing the river through the northern channel again. The construction of the arm of the jetty to the north of sections 17 and 20 caused gradual accumulation of sand over tidelands adjacent to both sections and, ultimately, dry land was created to the west of both sections. The dry land west of section 17, Lot 4, is the disputed property in this case. A map showing the configurations and locations of the parcels at issue and the Nehalem River channel in 1911 (with most of the disputed property shown as tidelands to the west of the Nehalem River channel), when the area was surveyed by the United States Army Corps of Engineers, is attached to this opinion as Appendix 3.

With that backdrop in mind, we turn briefly to the record title histories that the parties proffered in support of their respective claims. In 1883, the State of Oregon conveyed to William Hiatt by bargain and sale deed “all the tide lands lying west of and fronting and abutting upon lots 2, 3, [253 Or.App. 647]and 4 of section 17.” In 1908, the State Land Board patented to Wright Blodgett Company a 306–acre parcel of land that included Lot 4, section 17. By separate deeds, Wright Blodgett Company later conveyed both Lot 4, section 17, and the tidelands fronting and abutting Lot 4, to one of defendant's remote predecessors in title.¹ In 1989, defendant purchased Lot 4, and all tidelands fronting and abutting Lot 4, for $75,000.

Plaintiff bases its claim to the disputed property on a quitclaim deed that it obtained shortly before filing this lawsuit; that deed purported to convey title to “natural accretions” to Lots 1 and 2 of section 20 that are situated within property in section 17. Plaintiff's claim derives from Robert Riley's chain of title. Riley's chain of title began with a deed recorded in 1888, which carved out a 10–acre parcel of property located in section 20, consisting of Lots 1, 2, 3, and 4, from a larger tract. Presumably due to the Nehalem River's location within the southern channel at that point in time, the legal description for the 10–acre parcel originally included the Nehalem River as a part of its northern boundary.

In 1926, after accretions had begun to fill in the tidelands in the area, the owners of the 10–acre parcel and the remainder parcel in section 20 entered into a boundary-line agreement. The stated purpose of that agreement was to establish a boundary line because portions of the boundaries of the 10–acre parcel had been “obliterated.” The respective owners reallocated ownership of Lots 1, 2, 3, and 4 of section 20, such that Riley's predecessor owned the portion of those lots north of the boundary line. The legal description no longer included any reference to the Nehalem River, and it expressly stated that the properties were “all in Section 20.” Riley acquired the 10–acre parcel in 1944. Over the ensuing decades, Riley subdivided that property into eight plats. Sometimes the deed calls in transactions relating to the remnants of the 10–acre parcel in section 20 referred to the Nehalem River, but often they did not.

In 1996, decades after Lots 1 and 2, section 20, had been subdivided and sold to various purchasers, Riley recorded a deed purporting to convey “all the natural accretions” to Lots 1 and 2, section 20, to a trust. In 1998, in exchange for $500, Riley executed a deed to 3 & 3, LLC (3 & 3) purporting to convey “all the natural accretions” to Lots 1 and 2. Referring to a survey “subsequently completed,” that deed was re-recorded in 1999 with a new metes and bounds legal description referring to a 24.197–acre parcel located in section 17. 3 & 3 pledged the property described in the re-recorded deed, along with other property, as collateral for a loan which was subsequently subject to a foreclosure sale. In 2005, plaintiff purchased the accretions by a quitclaim deed following the foreclosure sale.

In 2006, plaintiff filed this action against defendant to quiet title to the disputed property, asserting ownership based on record title, or alternatively, accretion or adverse possession. As pertinent here, defendant counterclaimed to quiet title in his own favor. The case was tried to the court. The predominant focus at trial was on the deed history to the disputed property and how that property had been formed, with both sides offering multiple expert witnesses. In April 2010, the trial court issued its opinion. In that opinion, the court exhaustively reviewed the deed history and expert testimony. The court concluded that defendant's chain of title to Lot 4, section 17, and the Lot 4 tidelands was established in the deed record. The court also concluded that there are deeds in plaintiff's chain of title suggesting a transfer of ownership of all natural accretions to Lots 1 and 2, section 20, and that that property “may include some of the disputed property.”

The court reasoned that whether plaintiff's chain of title included any of the disputed property depended on the extent to which it was entitled to that property under accretion principles. In analyzing plaintiff's accretion claim, the trial court adopted testimony from plaintiff's expert witnesses regarding “the mechanism by which at least some of the property accreted from...