Yaquina Bay Timber & Logging Co. v. Shiny Rock Mining Corp.

• Decision Date: 26 November 1976
• Citation: 556 P.2d 672,276 Or. 779
• Parties: YAQUINA BAY TIMBER AND LOGGING CO., a corporation, Appellant, v. SHINY ROCK MINING CORPORATION et al., Respondents.
• Court: Oregon Supreme Court

Page 672

556 P.2d 672

276 Or. 779

YAQUINA BAY TIMBER AND LOGGING CO., a corporation, Appellant, v. SHINY ROCK MINING CORPORATION et al., Respondents.

Supreme Court of Oregon.

Argued and Submitted Oct. 6, 1976.

Decided Nov. 26, 1976.

Paul Gerhardt, Portland, argued the cause for appellant. With him on the briefs was John E. Johansen, Jr., McCormick & Reynolds, Portland.

Mark S. Dodson, Portland, argued the cause for respondents. Also on the briefs were Oglesby H. Young and Dezendorf, Spears, Lubersky & Campbell, Portland.

Before DENECKE, C.J., and McALLISTER, O'CONNELL, HOLMAN, HOWELL and BRYSON, JJ.

O'CONNELL, Justice.

This is a suit in equity to quiet title to the surface rights of three patented mining tracts. Defendant, by way of a plea in abatement, challenged the equitable jurisdiction of the court, and after a hearing the trial judge abated the suit and dismissed the complaint. Plaintiff appeals from this decree.

Plaintiff's suit to quiet title was brought under ORS 105.605, which provides that,

'Any person claiming an interest or estate in real property not in the actual possession of another may maintain a suit in equity against another who claims an adverse interest or estate therein for the purpose of determining such conflicting or adverse claims, interests or estates. * * *'

The complaint alleged that plaintiff was the owner of described real property except for mining claims and rights reserved to an ancestor in title; that defendants claimed an adverse interest in the surface rights of the property; and that the surface rights were not in the possession of another. Defendant Shiny Rock filed a plea in abatement, contending that it was in possession of the property by reason of its purchase of these mining rights; that because of this possession a suit to quiet title was improper; and that plaintiff's remedy was in ejectment. After a hearing on the issue of actual possession, the court found that the property was in the actual possession of defendant and accordingly dismissed the complaint for lack of equitable jurisdiction. ¹

The land in controversy consists of three patented mining claims known as the Princess, Black Prince and King No. 4 claims, near the Little North Fork of the North Santiam river in Marion County. These claims are located together with several other tracts in a steep, heavily timbered canyon. The properties can be viewed at a distance from a Forest Service road which travels near the top of the canyon. Access to the bottom on the canyon is a road which follows the north side of the river. Defendant maintains locked gates on the lower road at each end of the Canyon. The gates are situated where the road bisects property completely owned by defendant. Defendant is the owner of several other mining claims in the area and has a mining camp on the road near the middle of the valley.

Because the claims in question are located south of the river and at a distance from the lower road, defendant constructed a spur road which branches from the main road, crosses the river and leads to the claims. At one point the spur road cuts across the corner of one of the claims. At the time of this suit, the construction of the road had stopped short of the claims. However, its ultimate course to the Princess mine portal had been marked. Testimony at the hearing established that the the purpose of the spur road was to make it easier to remove timber windfalls from the surface of the property and facilitate movement to and from the mines. Prior to this construction defendant described the road as a 'mining and logging road,' in correspondence with the District Forest Ranger in order to build the spur road. Defendant reconstructed a bridge which spans the river. To do so, one or two trees from the Princess claim were felled for bridge timbers. In addition, cedar trees were sporadically harvested from the claims for posts and shakes to be used in the mining camp. Defendant pursued limited mining operations on the claims and some ore was removed from the mines for analysis. Sediment samples were taken from the streams and geochemical work was also performed. Trails on the claims which lead to the mine portals were maintained.

The evidence at the hearing disclosed that defendant has consistently questioned persons entering the valley, has given out questionnaires on the activities of passersby, sold gold panning permits, and has told people that it controlled all the property in the area. At one point a representative of plaintiff was deterred from entering the area because of rumors of violence around the mining camp. Plaintiff contended, however, that its representatives were never personally excluded from the area. Plaintiff also presented roof that the properties could be reached for logging purposes by means of the Forest Service road which runs along a higher elevation in the canyon.

We have not previously defined with any specificity the meaning of 'actual possession' for purposes of ORS 105.605. Actual possession is one of the elements of adverse possession. While the inquiry is different, some of the considerations applied in determining actual possession where a claim of adverse possession is asserted are applicable. As in the area of adverse possession, actual possession would necessitate activities which show an intent to hold land as one's own. Equivocal conduct which does not show this required intent such as an occasional or sporadic use would be insufficient to show actual possession. Whether such use is to be deemed occasional or sporadic may depend upon the character of the property and the purpose which motivates the occupant's use. ² And conduct which could constitute possession where the occupant has one purpose may not be regarded as possession where his use is motivated by another purpose. The latter observation is particularly germane to the present case. If the title to both the surface and subsurface of the property in question had been in a single ownership, the uses made of the surface by the defendants would be more readily explainable as the assertion of a possessory interest in the property. But here the mining rights and the surface rights had been conveyed out separately. The use of the surface is thus explainable in relation to either a possessory claim or a claim consistent with a permitted surface use incident to the subsurface estate.

Where there is severance between the mining and surface rights, actual possession of the surface by the mining rights owner must be shown by activities beyond the use of the surface for mining purposes. And if the use of the surface is ambiguous so that it is as consistent with a use for mining purposes as it is for denoting a claim of ownership, the former use would be accepted on the principle that the law will prefer an interpretation consistent with lawful rather than unlawful conduct. For this reason, the activities of the defendant in maintaining trails and clearing brush on the claims as well as constructing a road to the tracts do not aid its assertion of possession of the surface. ³

Defendant points to its 'enclosure' of the property in question by the gates at either end of the canyon as evidence of its possession. It is true that in some cases the act of enclosing property symbolizes an intent to possess it. ⁴ This was not the case here because the claims were accessible for logging purposes by an alternative route over a Forest Service road which runs at a higher elevation. Moreover, since the locked gates serve to protect the persons living at the mining camp and the equipment at other mines owned by defendants, the locked gates are as consistent with the intent only to protect the interest in the mining rights as with an intent to assert a broader claim.

On one occasion Robert Miller, plaintiff's agent, upon checking with the Forest Service as to the use of the lower road, was discouraged from using it when he was told that 'there are people up there with rifles and they were shooting and said they were having problems up there.' There was no other evidence to show that this protective action on the part of defendants actually occurred or that, if it did, it was related to an assertion of possession of this particular property.

In support of its assertion of a possessory interest in the surface estate, defendant points to the use of timber from the claims for firewood and bridge supports, and in harvesting cedar for shakes and posts for use in the mining camp. The use of the wood for bridge supports can be regarded as incident to the mining operations because it was reasonably necessary to the successful exploitation of the mines. ⁵ The cedar wood was apparently used in defendant's mining camp. The mining camp was maintained not only in connection with the mining claims on the land in question but also in connection with other land in which defendant had mining interests. Thus, this activity is distinguishable from a use of the surface in order to effectively enjoy the subsurface estate. ⁶

However, the occasional use of land for the removal of firewood or the like has been held to be insufficient, standing alone, to establish a possessory interest. ⁷ Defendant's sporadic use of the land in the present case was limited...