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Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.

Citation: 8 ELR 20841
No. No. SC-1940, 582 P.2d 1352/283 Or. 147, (Or., 08/01/1978) On remand

The court holds that while title to those portions of the riverbed which have traditionally underlain navigable portions of the Willamette River belongs to the state, title to the Fischer Cut, which became a portion of the navigable riverbed through a sudden and violent change in the path of the river, remains with the private owner. The court's earlier opinion in this case was remanded by the United States Supreme Court, 7 ELR 20137, for reconsideration in light of its holding that questions of title should be determined according to state law rather than federal law. Under the equal footing doctrine, upon admission to the Union the states acquire title to the bed of all navigable waters except where previously transferred by the federal government. Assuming the truth of the gravel company's claim that its predecessors in interest had title to the land prior to the admission to the Union of the state, the court rules that such title extended only to the river's high water mark and did not include the riverbed. Respondent gravel company argued that English common law, which was adopted generally in the state by constitutional provision, operates to transfer title to the riverbed of non-tidal waters to the adjacent riparian owner. The court finds, however, that to the extent common law is inappropriate to the state it is not binding upon the courts and declares that the riverbed of non-navigable waters located in the state, including the relevant portion of the Willamette, belongs to the state. Title to the Fischer Cut is a separate question because that portion of the riverbed lay above the high water mark at the time of the state's admission and was made a part of the main channel only through a subsequent avulsive flood. Whereas gradual movement in a river's banks acts to shift the adjacent property boundaries accordingly, avulsive changes do not alter title to either the old or new riverbed. Thus, the gravel company holds title to the bed of the Fischer Cut, and the case is remanded for further factual findings relating to the boundaries of that segment of the river.

Counsel for Appellant
Michael D. Reynolds, Ass't Attorney General; James A. Redden, Attorney General; W. Michael Gillette, Solicitor General; Peter S. Herman, Senior Counsel
Department of Justice, State Office Bldg; Salem OR 97301
(503) 378-4400

Counsel for Respondent
Robert Mix
745 N. Van Buren St., Corvallis OR 97330
(503) 753-4457

Counsel for Amicus Curiae 1000 Friends of Oregon
Robert E. Stacey
519 S.W. Third Ave., Portland OR 97204
(503) 223-4396

Before DENECKE, C.J., and HOLMAN, HOWELL, BRYSON, LENT and LINDE, JJ.