State ex rel. Johnson v. Bauman
| Decision Date | 27 December 1971 |
| Citation | 492 P.2d 284,7 Or.App. 489 |
| Parties | , 3 ERC 1769 STATE of Oregon ex rel. Lee JOHNSON, Attorney General of the State of Oregon, Appellant, v. W. C. BAUMAN et al., Respondents. |
| Court | Oregon Court of Appeals |
Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were Lee Johnson, Atty. Gen., and James W. Durham, Jr., Asst. Atty. Gen., Salem.
James H. Clarke, Portland, argued the cause for respondents Bauman and Howard S. Wright Const. Co. With him on the brief were McColloch, Dezendorf, Spears & Lubersky and George L. Kirklin, Portland.
No appearance for respondents Franklin Service Corp. and Paula Munson Penny.
Before LANGTRY, P.J., and FOLEY and THORNTON, Judges.
This appeal by the Attorney General is from an order dismissing his suit for a declaratory judgment against the defendants. The court had sustained the defendants' demurrer to the amended complaint and the Attorney General had refused to plead further.
In the amended complaint plaintiff alleges that the defendants own a number of specifically described lots in Cannon Beach, Oregon, and that they propose to build condominiums upon them. He alleges that for a period in excess of 10 continuous years the general public used the specifically described lots and the ocean shore lying westerly from them adversely to defendants. He alleges that the public's use of the property has been for a number of specific recreational purposes. The declaratory judgment sought is one declaring the existence of the public's recreational easement in the real property described in the complaint, and enjoining defendants from using the property for building condominiums or in any manner which would interfere with the public's alleged easement therein.
The trial court ruled that the Attorney General has no authority in law to bring such a proceeding. It held that the Attorney General's authority in this instance is closely comparable to that sought but denied in People of Oregon v. Debt Reducers, Or.App., 92 Adv.Sh. 867, 484 P.2d 869 (1971). The trial court concluded that a fair reading of the statutes giving authority to the State Highway Commission to exercise the state's jurisdiction over state lands and rights in land adjacent to the ocean shore indicates that the legislature intended that if any state official, board or commission were to have authority to bring a suit such as this, the State Highway Commission would have been that body. We agree with that conclusion.
In Debt Reducers we held:
'* * * (I)n civil matters the Attorney General of Oregon has the commonlaw powers of that office, except where they are limited by statute or conferred upon some other official.' 92 Adv.Sh. at 875, 484 P.2d at 874.
We quoted from State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293, 299, 182 So.2d 234 (1965), that at common law the Attorney General
"* * * Had authority to institute proceedings to abate public nuisances, affecting publid safety and convenience, to control and manage all litigation on behalf of the state, and to intervene in all actions which were of concern to the general public * * *." 92 Adv.Sh. at 875, 484 P.2d at 874.
We think that this language could be properly interpreted to authorize the Attorney General to bring a suit such as the one here. The question remains, however, whether the legislature has delegated that authority to some other agency of the state government.
In the amended complaint, two kinds of land are named to which it is alleged that the state has some rights: (1)(a) the land between low and high tide lines owned in fee simple, and (b) the land between the line of vegetation and line of high tide to which the state has a recreational easement; and (2) easements acquired for recreational purposes through adverse use by the public in privately-owned property above the vegetation line.
Plaintiff's amended complaint requests declaratory judgment affecting all of defendants' property. From the description of that property in the complaint it is apparent that some allegedly lies seaward of the statutory vegetation line (ORS 390.770) and is 'ocean shore.' ORS 390.605(2) describes 'ocean shore' as the land lying between extreme low tide and the vegetation line. The trial court's decision only addressed the question of the Attorney General's authority to bring suit regarding defendants' land east of the ocean shore. In oral argument the Attorney General stated the easterly land was the only land in question and conceded that the State Highway Commission has exclusive authority as to legal actions on behalf of the state regarding any land in the ocean shore, that is, seaward of the vegetation line. With this clarification, we return to the central issue of whether the legislature intended to delegate authority to bring the instant suit to an agency or official other than the Attorney General.
ORS 366.205 provides in pertinent part:
'(3) * * * (T)he commission (highway) has complete jurisdiction and authority over * * * recreational grounds or places acquired by the state for recreational purposes except as otherwise provided by law.
'(4) The commission has full power to carry out provisions of and may make such rules and regulations as it deems necessary for the accomplishment of the purposes of this Act.
* * *.'
A similar grant of power is found in ORS 390.635 which provides that the State Highway Commission
'* * * has jurisdiction over the state recreation areas designated or acquired under ORS 390.610, 390.615, 390.620 or 390.630 in order to carry out the purposes of ORS 390.610, 390.620 to 390.660 * * *.'
ORS 390.605(3) defines 'State recreation area' generally as 'land * * * under the jurisdiction of the State Highway Commission, pursuant to subsection (3) of ORS 366.205 * * *.' A delineation of the specific recreation areas is contained in various sections of ORS ch. 390.
ORS 390.615 declares the part of the ocean shore (defined supra) between extreme low tide and ordinary high tide to be a state recreational area. This area is commonly referred to as the 'wet sand.'
ORS 390.610(2) provides that where the public's use 'has been legally sufficient to create rights or easements' in the ocean shore, it is in the public interest to protect and preserve such public rights of easements as a part of Oregon's recreational resources. In other words, the public may acquire a recreational easement in the 'dry sands,' or that area of the ocean shore between ordinary high tide and the vegetation line. State ex rel. Thornton v. Hay, 254 Or. 584, 587, 462 P.2d 671 (1969). 1
As to the aforementioned recreational areas, the Commission has explicit statutory authority to:
'* * * undertake appropriate court proceedings to protect, settle and confirm all such public rights and easements in the State of Oregon.' ORS 390.620(1).
The Attorney General concedes this much, but argues that...
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State Highway Commission v. Bauman
...development of a proposed condominium project on the property. This suit, sounding in equity, is a sequel to State ex rel. Johnson v. Bauman, 7 Or.App. 489, 492 P.2d 284 (1971), wherein we held that a suit of this nature on behalf of the public must be brought by the State Highway Commissio......
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...that the attorney general could or would bring a civil suit to enjoin violations is wholly speculative. Cf. State ex rel. Johnson v. Bauman, 7 Or.App. 489, 492 P.2d 284, 285 (1971) (attorney general has common law power to sue for injunction to abate public nuisance, but power may be transf......