State Highway Commission v. Bauman

• Decision Date: 21 January 1974
• Citation: 517 P.2d 1202,16 Or.App. 275
• Parties: , 4 Envtl. L. Rep. 20,311 State of Oregon, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, et al., Appellant, v. W. C. BAUMAN et al., Respondents.
• Court: Oregon Court of Appeals

Page 1202

517 P.2d 1202

16 Or.App. 275, 4 Envtl. L. Rep. 20,311

State of Oregon, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, et al., Appellant, v. W. C. BAUMAN et al., Respondents.

Court of Appeals of Oregon.

Argued and Submitted Dec. 20, 1973.

Decided Jan. 21, 1974.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for appellant. On the brief were Lee Johnson, Atty. Gen., and John W. Osburn, former Sol. Gen., Salem.

James H. Clarke, Portland, argued the cause for respondents W. C. Bauman, Robert G. Bauman, W. C. Bauman Co., Inc., and Howard S. Wright Construction Co. With him on the brief were Dezendorf, Spears, Lubersky & Campbell, and George L. Kirklin, Portland, and Vawter Parker, Hood River.

C. E. Wheelock, Portland, argued the cause and filed the brief for respondent Franklin Serv. Corp.

No appearance by respondent Paula Munson Penney.

Before LANGTRY, P.J., and FORT and TANZER, JJ.

LANGTRY, Presiding Judge.

Plaintiff appeals from a decision in favor of defendants in this declaratory judgment suit in which the plaintiff seeks to establish alleged public recreational rights in a privately owned sand dune area eastward of the ocean beach and above the vegetation line in the City of Cannon Beach, Clatsop County. The complaint also seeks an injunction against the defendants' proceeding with the 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 Commission rather than by the Attorney General. The subject real property described in the complaint consists of a total of what appears to be, from the exhibits in the case, about a four-block area of contiguous land, which was platted of record in 1890. We adopt the trial court's following statement of the case:

'* * * The property is located northerly and easterly of the point where Elk Creek empties into the Pacific Ocean in Clatsop County. The entire property also abuts and lies immediately eastward and upward of the vegetation line or coordinate line established by and described in ORS 390.605 et seq.

'Defendant Paula Munson Penney is the fee title owner of the real property involved. She purchased the property in separate parcels, mostly from Clatsop County, which had previously obtained title through tax foreclosure. She has owned the property for approximately 14 years.

'The other named defendants, excepting Franklin Service Corporation which is a financier of the project, are the prospective developers of the condominium. The proposed condominium will occupy the entire property in question with the exception of three routes of access through and across the property which will be dedicated to and provided by the developers for the use and benefit of the general public in reaching the beach or dry sand area lying seaward of the so-called 16-foot or vegetation line.

'The property is generally a sand dune. When first acquired by defendant Penney, the dune rose to a higher elevation. In conjunction with a previous planned development on her part, Mrs. Penney caused the dune area to be cut down to approximately one-half its former elevation, to be terraced, and to be planted with beach grass for stability. Thereafter, in order to prevent public usage of her property, defendant Penney continually posted the area with no trespassing signs, erected fences and attempted to prevent vehicular traffic by placing of chains and logs on roads and the beach perimeter. She also caused the area to be regularly patrolled by sheriff's deputies and the Cannon Beach police.

'More recently, defendant Penney has contracted with the other defendants for the development of the said condominium project. Plans were prepared for this development and were submitted to various public agencies for their approval or disapproval. The plaintiff Highway Commission reviewed these plans and disclaimed any interest at that time in the real property in question or the development. The City of Cannon Beach Planning Commission and City Council reviewed them and approved same and eventually defendant obtained therefrom a conditional-use permit and a building permit allowing them to proceed. Also, the Oregon State Parks and Recreation Land Acquisition Department conferred with defendants concerning plans for that department's acquisition and development of a parking lot and beach access route for general public use easterly and adjoining the condominium project. It was in conjunction with these plans that defendants established the proposed public beach access routes across the condominium project. It should also be noted that defendants have paid all real property taxes and assessments on the property.

'It is the contention of the plaintiff that since the early 1900's, the general public has used the sand dune area in question for various recreational purposes without limitation, under claim of right, continuously, openly, visibly, adversely, and notoriously. That this public use has been without restraint, without seeking or obtaining permission to use the same from any person or persons whomsoever and allegedly with full knowledge and acquiescence of the owners of the property and their predecessors in title. It is plaintiff's further position that as a result of the alleged usages, public recreational easement rights have been acquired and fixed * * * (through) the common law doctrines of prescription or adverse user, grant, express or implied dedication, or custom.

'Defendants deny that the general public has gained any recreational easement rights, and that the proof failed to establish plaintiff(')s contentions * * *.'

We affirm the trial court and in doing so find it unnecessary to set forth in this opinion some of the plaintiff's contentions which are without merit or to consider some of the defendants' contentions which may have merit. The contentions which we find determinative of the case relate to the plaintiff's asserted claims that the public has acquired recreational rights to the land through either (1) prescription or adverse user; (2) express or implied dedication; or (3) custom.

(1). Prescription or adverse user.

Plaintiff produced about 15 witnesses, the gist of whose testimony was to the effect that from somewhere around 1900 they and other people whom they had observed had from time to time used the sand dune area for various recreational activities. Some testified to such use in earlier, and some in later, years. Most of them testified that the public crossed the subject land going to and from the beach.

The defendants produced about an equal number of witnesses whose testimony indicated a substantially less amount of public use of the land than plaintiff's witnesses had described. Further, defendants' witnesses testified that, since Mrs. Penney's acquisition of the property, positive steps had been taken by the owners to prevent the public from using or crossing the property. Barriers and a fence were placed around it, 'No Trespassing' signs were frequently posted upon it and police were called to and did eject trespassers. There has never been a public improvement on, or even evidence of, governmental interest in the public's use of the land, which is usual in situations were dedications have been found in favor of public recreational uses. Cf. Gion v. City of Santa Cruz, 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50 (1970).

The most recent Oregon case concerning both dedication of property for public use and the acquisition of public rights by prescription is Muzzy v. Wilson, 259 Or. 512, 487 P.2d 875 (1971). In that case the court said:

'* * * In adverse possession cases we have required that the proof be 'clear and positive.' See Scott v. Elliott, 253 Or. 168, 178, 451 P.2d 474 (1969) and cases there cited. Testimony...