State, By and Through Dept. of Fish and Wildlife v. Kortge

• Decision Date: 24 April 1987
• Citation: 733 P.2d 466,84 Or.App. 153
• Parties: STATE of Oregon, By and Through the DEPARTMENT OF FISH AND WILDLIFE, Appellant--Cross-Respondent, v. Kenneth W. KORTGE, Helena M. Kortge, Iva Judith Kortge, Julie Kortge Testa, Linnea Kortge Sohler, and Kenneth C. Kortge, Respondents--Cross-Appellants. CC84-148; CA A37038.
• Court: Oregon Court of Appeals

Page 466

733 P.2d 466

84 Or.App. 153

STATE of Oregon, By and Through the DEPARTMENT OF FISH AND WILDLIFE, Appellant--Cross-Respondent, v. Kenneth W. KORTGE, Helena M. Kortge, Iva Judith Kortge Julie Kortge Testa, Linnea Kortge Sohler, and Kenneth C. Kortge, Respondents--Cross-Appellants.

CC84-148; CA A37038.

Court of Appeals of Oregon.

Argued and Submitted Dec. 1, 1986.

Decided March 4, 1987.

Reconsideration Denied April 24, 1987.

David Schuman, Asst. Atty. Gen., Salem, argued the cause, for appellant--cross-respondent. With him on brief, were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

R.L. Marceau, Bend, argued the cause, for respondents--cross-appellants. With him on brief, was Dennis C. Karnopp, Bend.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

WARDEN, Presiding Judge.

Plaintiff brought this action for a declaratory judgment to establish that it could use a parcel of real property it had purchased "for recreation by the general public so long as that use does not unreasonably interfere with defendants' rights" and an injunction prohibiting defendants from posting and enforcing "No Trespassing" signs. Defendants, whose predecessors in title originally conveyed the property to plaintiff's predecessor in title, claimed that, under a reservation in the original conveyance, defendants retained the right to exclude the general public. They also alleged as an affirmative defense that they had fee title to the property by adverse possession. After a trial without a jury, the court entered a judgment that plaintiff has fee title to the property and that defendants have the right to exclude the general public. Plaintiff challenges the latter conclusion. Defendants cross-appeal, contending that the trial court erred in not finding that they had established a prescriptive right to exclude the public.

In 1919, Albert and Rose Roberts owned a parcel of land along the Deschutes River in northern Wasco County. Part of the parcel was a narrow strip lying between the river and a railroad right-of-way, the property here in question. In November, 1919, the Robertses executed a warranty deed conveying the riverside strip to the Eastern Oregon Land Company (EOLC) for $15,000. The deed also granted to EOLC the rights of the grantor to the Deschutes River bed adjacent to the riverside strip, all rights and privileges appurtenant to the riverside strip and

"the perpetual right, privilege and easement, to be exercised now or at any time hereafter by the said grantee * * * to overflow by the back-waters from any dam which the grantee * * * may construct for hydraulic purposes in the said Deschutes River, the remaining lands now owned by the said grantors * * * adjacent to [the riverside strip]."

The deed reserved to the grantors

"the right to use the [riverside strip] for agricultural, horticultural or grazing purposes as [they] may see fit, until such time as the grantee * * * shall by construction of the contemplated hydraulic works overflow the same with the back-water from said river, and thereafter [grantors] may continue to use for such purposes such portion of said premises as are not submerged";

the right to construct on the grantors' remaining property a pumping facility for irrigation purposes and to take 400 acre feet of water yearly from the grantee's reservoir; and the right to water livestock anywhere along the river strip "to which it may be feasible for the said grantors * * * to gain access to the water's edge for said purpose * * *." The grantors also reserved the right to use the river or any reservoir created by the grantee's dam for non-commercial ferrying of persons or livestock or produce or goods "for the convenient use of the adjacent lands now owned by grantors." The deed was recorded in 1923. The Robertses conveyed their interest in the same property to defendants' predecessors in title. Through a series of transactions, defendants are the current owners of whatever interest the Robertses retained for themselves when they executed the EOLC deed in 1919.

EOLC never erected the "hydraulic works" which was contemplated when it acquired the property, and it conveyed the property to the Oregon Wildlife Heritage Foundation in August, 1983. The foundation conveyed the property to plaintiff in November of the same year.

The riverside strip has been used since 1919 by defendants and their predecessors for grazing and watering cattle. Defendants own property which is used for growing wheat on the upland side of the railroad. The railroad is fenced on both sides so that the only passage between the properties is by under passes beneath the railroad. Defendants have excluded the public from the riverside strip and from their adjacent ranch lands, because they deemed activities of the public (such as smoking, leaving gates open, using motorcycles and jet boats and bringing dogs to the property) not to be compatible with their cattle ranching. After plaintiff purchased the property, it adopted a plan for the use of the strip by the public, primarily for bank fishing during the summer months. Because defendants continued to post and enforce "No Trespassing" signs, plaintiff brought this action.

The first question is whether the scope of our review is as in an action at law, as defendants contend, or as in equity, as plaintiff contends. Because there is evidence in the record sustaining the trial court's findings of fact and because we would find the same facts, we conclude that it makes no difference what our scope of review is. The controlling question is the legal effect of those facts.

Plaintiff's first assignment of error is that the court erred in entering judgment as follows:

"Included among defendants' reserved rights is the right of the defendants, their heirs or assigns to use the real property * * * for agricultural, horticultural or grazing purposes as defendants, their heirs or assigns may see fit * * *. This includes the right to exclude the general public from the real property * * * and to post signs on the property in order to exclude the general public."

Plaintiff contends that the court must, in construing the deed, consider the intention of the parties, Fendall v. Miller, 99 Or....