SEA RIVER PROPERTIES, LLC, an Oregon limited liability company, Petitioner on Review,
Loren E. PARKS, an individual, Respondent on Review. Loren E. PARKS, an individual, Third-Party Plaintiff,
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
Argued and Submitted September 20, 2013
On review from the Court of Appeals CC 062011;
CA A145896. [*]
Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, argued the cause and filed the brief for petitioner on review.
G. Kevin Kiely, Cable Huston Benedict Haagensen & Lloyd LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief were Laura J. Walker, Casey M. Nokes, and Gretchen S. Barnes.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.[**]
[355 Or. 833] KISTLER, J.
Plaintiff Sea River and defendant Parks own adjoining parcels of land on the central Oregon coast near Nedonna Beach just south of the Nehalem River. Between the 1920s and the 1990s, after the United States government built two jetties to contain the Nehalem River, the ocean and wind deposited sand and silt onto the upland, creating approximately 40 acres of land west of those lots and south of the Nehalem River's southern jetty. The primary issue in this case is who owns those 40 acres (the " disputed property" ). Plaintiff filed this action to quiet title to the disputed property, arguing that it owned the property on the basis of its record title, through the law of accretion, or by adverse possession. Defendant counterclaimed, contending that those same legal theories led to the conclusion that he held title to the property.
After a 14-day bench trial, the trial court found that plaintiff's predecessors in interest took title to the disputed property through the law of accretion. The trial court also ruled, however, that defendant later acquired title to the disputed property through adverse possession. The trial court accordingly entered judgment giving defendant title to the disputed property. Plaintiff appealed, challenging the trial court's ruling on adverse possession. Defendant cross-assigned error, challenging the trial court's ruling on accretion. The Court of Appeals affirmed the judgment, concluding that defendant's predecessors in interest had acquired title to the
disputed property through the law of accretion. Sea River Properties, LLC v. Parks, 253 Or.App. 643, 297 P.3d 1 (2012). We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals and the trial court's judgment and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURE
This case arose as an equitable action to quiet title to real property. Plaintiff and defendant own adjoining lots. [355 Or. 834] Plaintiff owns Section 20, Lot 1, which lies directly south of the lot that defendant owns, Section 17, Lot 4. The disputed property lies to the north of plaintiff's lot and to the west of defendant's. After considering the evidence in this case, the trial court made extensive, detailed findings of fact. On appeal, the parties asked the Court of Appeals to review some of the trial court's factual findings de novo. Id. at 645; see ORS 19.415(3) (giving the Court of Appeals discretion to review some equitable proceedings de novo ). The Court of Appeals declined to do so and accepted the trial court's findings regarding accretion. Sea River Properties, LLC, 253 Or.App. at 645. We also accept the trial court's factual findings that are supported by the record and review its decision for errors of law. ORS 19.415(4).
In setting out the facts, we start by describing the geological history of the area, then explain how defendant and plaintiff came to own the property, and finally summarize the history of their legal dispute over it.
A. Geological Background
In the 1850s, the federal government surveyed coastal land in Oregon and platted the area by dividing it into sections. In this instance, each section was further divided into four lots, running north to south, from Lot 1 to Lot 4. Section 17, Lot 4's southern border is Section 20, Lot 1's northern border. In 1858, after the lots were first platted, their western border was the Pacific Ocean. At that time, the mouth of the Nehalem River lay slightly north of Section 17, Lot 4's northern border. Figure 1, set out below, depicts the location of the two lots and the Nehalem River in 1858.
Until the twentieth century, the Nehalem River continually alternated between two channels, a northern channel and a southern channel. In 1858, the river flowed through its northern channel. After 1858, over several decades, the river drifted, and by 1911, it had shifted into its southern channel. That gradual shift, as the trial court found, eroded significant portions of land along the coast, including almost all of Section 17, Lot 4. The trial court found that, by 1911, Section 17, Lot 4 had contracted into
a small, triangular piece of land (represented by the triangle in Figure 2) on the eastern side of the Nehalem River's southern channel. The trial court characterized that land in 1911 as " riverfront" property.
[355 Or. 835]
Figure 1: 1858. The Nehalem River in its northern channel.
[355 Or. 836]
Figure 2: 1911. The Nehalem River shifts to the south, eroding Section 17, Lot 4.
By 1911, the Army Corps of Engineers began building two jetties to stop the river's drift and to keep it flowing in its northern channel, primarily to make the river safer for navigation. By 1926, the jetties were complete. The trial court found that, with the Nehalem River confined between the jetties to the north, the water in the southern channel " by some process undisclosed" in the record narrowed and dried up into a non-navigable stream, McMillan Creek, which flowed north to the Nehalem River. By that point, what little remained of Section 17, Lot 4 had as its western border the centerline of McMillan Creek (the former southern channel of the Nehalem).
From the 1920s until the 1990s, the ocean and winds deposited sediment along the upland of Section 20, Lot 1 until, gradually, new land began forming south of the Nehalem River's southern jetty. The new land grew by accretion north and northeast and gradually filled in portions that the Nehalem River had eroded before the 1920s. [355 Or. 837] The new land, which we and the parties refer to as the disputed property, " was non-contiguous with the property transferred to [defendant] by his predecessors in interest." The bed of McMillan Creek separates the disputed property from Section 17, Lot 4. The disputed property (outlined by dashes in Figure 3) lies west of the center line of McMillan Creek (the Nehalem River's former southern channel), north of the section line, and just south of sandy beach along the Nehalem River's southern jetty.
Figure 3: 2006. The configuration of the land at the time of trial.
B. Chain of Title
In 1883, William Hiatt purchased from the state " all the tide lands lying west of and fronting and abutting upon Lots 2, 3, and 4 of Section 17." The trial court found that, in 1883, the only tidelands adjacent to and touching Section 17, Lot 4 were river tidelands on the eastern side of the Nehalem River's southern channel, where the river then flowed. In 1900, the State Land Board foreclosed on [355 Or. 838] mortgages secured by, among other property, Section 17, Lot 4. In 1908, the State Land Board patented to Wright Blodgett Company (Wright) a plot of land that included Section 17, Lot 4. In 1924, Wright conveyed Section 17, Lot 4 by warranty deed to one of defendant's predecessors in interest. Wright also conveyed its " interest of, in and to tide lands fronting on" Lot 4 of Section 17 by quitclaim deed to the same predecessor in interest. In 1989, eight years after defendant purchased a vacation home in Nedonna Beach near the disputed property, defendant purchased Section 17, Lot 4, including " [a]ny and all tidelands fronting and abutting Government Lot 4, in Section 17."
Plaintiff's title traces back to Riley, who had purchased a 10-acre parcel that included Lots 1 and 2 of Section 20 in 1944 and subdivided the land for sale to several different purchasers. In 1996, Riley executed a deed conveying " all the natural accretions" to Lots 1 and 2 in Section 20 to a trust. In 1998, Riley sold those same accretions to a limited liability company, which later pledged the property as collateral for a loan on which the company defaulted. In 2005, after a foreclosure sale, plaintiff purchased by quitclaim deed " all the natural accretions" to Section 20, Lots 1 and 2.
C. Procedural Background
In 2006, plaintiff filed an action to quiet title to the disputed property, arguing that it owned the disputed property on the basis of its record title, accretion, or adverse possession.
Defendant counterclaimed, asserting ownership on the same grounds.
Both the trial court and the Court of Appeals concluded that, because neither party's deed could be conclusively interpreted to include the disputed property, the law of accretion would determine the parties' property rights [355 Or. 839] to it. In deciding the question of accretion, the trial court heard extensive expert testimony about the geological development of the area since 1858 and made detailed factual findings. It found that, when the Nehalem River shifted into its southern channel in the 1880s, it eroded large portions of upland along the coast, including most of Section 17, Lot 4. It further found that the process of erosion had permanently changed Section 17, Lot 4's western border: Where in the 1850s Section 17, Lot 4 had fronted the Pacific Ocean, by 1911 it fronted the Nehalem River and, as the southern channel of the Nehalem dried up and became a non-navigable creek, the western border of Section 17, Lot 4 went to the centerline of that creek. Finally, the trial court found that, after the federal government constructed the Nehalem River jetties, the disputed property formed by accretion, starting on Section 20, Lot 1 and growing northerly and northeasterly up the coastline toward the southern jetty.
The trial court ruled that, under Oregon law, accreted land belongs to the owner of the upland to which the accreted land first attaches. See State Land Board v. Sause, 217 Or. 52, 82, 342 P.2d 803 (1959) (stating that principle). It also identified a potential exception to that rule--the doctrine of lateral accretion. Under that doctrine, a trial court may divide accreted land when land grows laterally beyond a fixed property line such that it blocks one littoral or riparian landowner's access to water. See, e.g., Bonnett v. Division of State Lands, 151 Or.App. 143, 152-53, 949 P.2d 735 (1997) (discussing that doctrine).
Applying those rules to the facts, the trial court concluded that, because the accretion began along the upland of Section 20, Lot 1, the owners of that lot (plaintiff's predecessors in interest) took title to the disputed land. It also concluded that, because Section 17, Lot 4 did not border on the Pacific Ocean when the accretion began, the doctrine of lateral accretion did not apply to give defendant access to the Pacific. Ordinarily, those findings would have led to the conclusion that plaintiff's predecessors in interest acquired title to the disputed property as a result of accretion and that plaintiff, as a result of purchasing the natural accretions to Section 20, Lot 1, held title to the disputed property. The trial court, however, also found that defendant satisfied [355 Or. 840] the elements of adverse possession and thus acquired title to the disputed property that way. The trial court accordingly entered a judgment giving defendant title to the disputed property.
The Court of Appeals affirmed the trial court's judgment but on a different ground--namely, that defendant acquired title to the disputed property as a result of accretion. In reaching that conclusion, the Court of Appeals accepted the trial court's factual findings. However, it disagreed with the " conclusions that the [trial] court drew from those facts." Sea River Properties, LLC, 253 Or.App. at 651. The Court of Appeals explained initially that the law of accretion in Oregon is that " ownership of the land whereupon that new land was formed is the controlling consideration" in determining property rights to accreted land. Id. at 653. It found that either the state or defendant's predecessors in interest to Section 17, Lot 4 owned the tidelands over which the disputed property formed. See id. The Court of Appeals held that, because plaintiff's predecessors in interest did not own the tidelands on which the disputed land formed, the trial court erred in concluding that plaintiff's predecessors in interest took title to that land as a result of accretion. Id.
The Court of Appeals also found that " [t]he state had *** conveyed th[e] tidelands to [defendant's] predecessor" before the Nehalem eroded parts of Section 17, Lot 4 in 1911. Id. at 653. The court explained that it was " aware of no legal principle supporting the proposition that defendant's predecessors' ownership of those tidelands was lost merely because the river periodically came to divide them from the ...