United States District Court, D. Oregon
Michael H. Simon, District Judge.
case arises from a dispute over the right to use irrigation
water from a well on land in Harney County, Oregon. The land
(hereinafter “the Property)” is part of Harney
County Tax Lot 1500, specifically the Northwest quarter of
Section 30 of Township 23 South and Range 34 East, Willamette
Meridian. Plaintiffs claim a right to irrigate the Northwest
quarter of Section 30 from a well and pivot located there.
ECF 1. Plaintiffs argue that this right is derived from their
private purchase of the land parcel - the complaint alleges
that plaintiffs are “Assigns, bona fide
purchasers” of the Property and “patent
holders” of the “Miller Patent.”
Harney County Tax and Assessment Department and Ted Tiller
(“Harney County Defendants”) move the Court for
an order dismissing the case for lack of jurisdiction and for
failure to state a claim upon which relief can be granted.
ECF 16. The remaining defendants (“State
Defendants”) also move to dismiss for lack of
jurisdiction and failure to state a claim. ECF 30. Plaintiffs
have cross-filed a motion for summary judgment. ECF 42. For
the reasons that follow, the Court grants the motions to
dismiss of Harney County and State Defendants.
Ownership of the Northwest Quarter of Section 30
Property was originally conveyed, or patented, to Ada L.
Miller in 1907 by the United States under the Desert Lands
Act of 1877, in certificate No. 299 (“Miller
Patent”). ECF 1. Ex. A (Miller Patent) and 19 Stat. 377
(Desert Lands Act). At the time of the Miller Patent, Section
30 was divided into the East half and the West Half. The
Miller Patent conveyed the West half comprising a total of
315.24 acres. The East half was conveyed to Charles Miller.
ECF 14. Ex. 105. Ownership of Section 30 has changed since
1907 and the ownership has been reconfigured such that
Section 30 is now divided into the North half and the South
half. ECF 32. Harney County has designated the North half
(which includes the Northwest quarter) as Tax Lot 1500 and
the South half as Tax Lot 1600. Plaintiffs claim to be in
possession of the Miller Patent. ECF 1.
Property at issue in this case is the North half of the West
half or the “Northwest quarter” of Section 30.
Until recently, the subject Property has been held in fee
title by Edward Chotard. ECF 14 Ex. 102 (Bargain and Sale
Deed to Chotard); ECF 31. After this lawsuit was filed,
Chotard conveyed Tax Lot 1500 to Duane W. Cummins and Anne M.
Cummins by Warranty Deed. The deed to Chotard and the deed
from Chotard to the Cummins's were recorded in the Harney
County property records on September 18, 2018.
recorded on September 18, 2018 was a document referencing a
June 2, 2018 purchase and sale agreement entered into by
Chotard, plaintiff Schrock and the Cummins's involving
the following described property:
Lots 1 and 2; East half of the Northeast quarter; Northeast
quarter of Section 30, Township 23 South, Range 34 East of
the Willamette Meridian, Harney County, Oregon.
ECF 32. This purchase and sale agreement apparently predates
the warranty deed that conveyed the Property (the Northwest
quarter) to the Cummins's. ECF 32. The June 2, 2018
purchase and sale agreement itself was not recorded.
complaint alleges that plaintiffs are “assigns, bona
fide purchasers” of land and “land patent
holders, ” apparently referring to the Property and the
Miller Patent. ECF 1. The complaint contains no allegations
of fact showing how either plaintiff came to have an interest
in the Property or why their interest is not reflected in
county land records. Plaintiffs have attached several
documents to their response to defendants' motions to
dismiss, including two unrecorded purchase and sale
agreements, one of which is appears to be a draft. ECF 42 Ex.
1. The first exhibit is entitled “Sale and Purchase
Agreement” entered into by Chotard and plaintiff
Schrock, selling Schrock the following described property:
Lots 1 and 2, East half of the Northwest quarter, Northeast
quarter, Section 30, Township 23 South, Range 34 East of the
Willamette Meridian, Harney County, Oregon.
agreement is signed by both Chotard and Schrock and is dated
November 18, 2014. ECF 42. This Sale and Purchase Agreement
was not recorded with the County. It is within this context
that Schrock claims a right to irrigate “the Northwest
quarter of Section 30, ” from a well and pivot located
there. ECF 1.