State Highway Commission v. Bauman

No. 28831 (Or. Cir. Ct. February 23, 1973)

No recreational easement exists in favor of the general public on a privately owned sand dune above the vegetation line, and defendants can continue devlopment and construction of a condominium housing project on the site. Plaintiff failed to prove the clear and positive existence of such a prescriptive easement by a preponderance of the evidence. There may be an easement for access across the site to the public beach, but the defendants have adequately provided for such access in the design of the project.

For other Oregon decisions concerning dry sand areas below the vegetation line see 2 ELR 20381 and 2 ELR 20383.

Counsel for Plaintiff
Philip J. Engelgau Assistant Attorney General
Louis S. Bonney Assistant Attorney General
100 State Office Building
Salem, Oregon 97310

Counsel for Defendants
George L. Kirklin
McColloch, Dezendorf, Spears & Lubersky
800 Pacific Building
Portland, Oregon 97204

C. E. Wheelock
Wheelock, Richardson, Niehaus, Baines & Murphy
505 Franklin Building
Portland, Oregon 97204

Lawrence M. Dean
McDonald, Dean, McCallister & Snow
801 Commercial Street
Astoria, Oregon 97103

Counsel for Amicus Curiae Western Environmental Trade Association
Henry A. Buehner
1618 SW First Avenue
Portland, Oregon 97201

[3 ELR 20290]

Edison, J.

OPINION

This matter was heard on trial by this Court and decision was reserved pending preparation of memoranda of law by counsel and amicus curiae. Such memoranda have been received and read by the Court together with the authorities cites therein, the testimony and exhibits have been reviewed, and the Court's opinion will follow. However, the Court would take this opportunity to compliment counsel and amicus for a well-tried case and preparation of most excellent memoranda of law. The memoranda have been made a part of the Court's official file.

This is a suit for declaratory judgment, sounding in equity, brought by the Oregon State Highway Commission seeking judicial declaration of the existance of a recreational easement in favor of the general public in certain real property located in the City of Cannon Beach, Oregon, and further, seeking an injunction restricting or preventing the defendants from developing or constructing upon said real property a condominium housing project. The property is located northerly and easterly of the point where Elk Creek empities into the Pacific Ocean in Clatsop County. The entire properly also abuts and lies immediately eastward and upward of [3 ELR 20291] the vegetation line or coordinate line established by and described in ORS 390.605 et seq.

Defendant Paula Munson Penny 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 Penny, the dune rose to a higher elevation. In conjunction with a previous planned development on her part, Mrs. Penny 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 useage of her property, defendant Penny 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 Penny 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 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 throughout 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 plaintiffs contentions. In addition, and upon the assumption that if such a recreational easement has been obtained, defendants assert several affirmative defenses. In summarizing, the affirmative defenses are allegedly that the plaintiff lacks the capacity to bring this suit; that the plaintiff is equitably estopped to deny defendants' title and full exercise of rights in the property; that the plaintiff is barred by the doctrine of laches in now asserting the public's rights; that the Oregon Legislature had pre-empted the field with respect to the acquisition of public recreational easements and that the courts may not therefore deal with such claims; that plaintiff's claims, if permitted, would constitute a taking of defendant's property without due process of law and without adequate compensation therefor, that any public recreational easements in the property were lost through previous real property tax foreclosures and resale by Clatsop County; and that any public recreational easements have themselves been lost through adverse possession by the defendants asserting their rights to the property for more than 10 years last past.

It has become apparent from the evidence that members of the public have, to some degree at least, subjected the area in question to virtually the entire gamut of human recreational possibilities from sightseeing to strawberry picking to sexual intercourse. It has therefore been urged herein that if the courts are to permit public recreational rights to obtain on the basis of such use for extended periods of time, then enormous clouding will occur in the titles to all privately held real property which abuts the dry-sand area along the entire Oregon Coast. It would further follow, that throughout the State of Oregon, where the interests of both the transient and permanent population are so substantially oriented toward outdoor recreation, vast uncertainties would be created in land titles where privately held real estate has been subjected to hunting, fishing, skiing, picnicking, snowmobiling, hiking, etc. It then seems essential that this Court, and any appellate tribunals, decide this case upon an analysis and disposition of plaintiff's contentions and avoid, if possible, a decision based upon any of the aforesaid affirmative defenses which are, by and large, peculiar in their application only to this case and which would not result in the creation of a helpful guideline for the benefit of both the public and the landowners.

We should therefore take up for discussion the four general theories through which plaintiff asserts that public easement rights in the subject property have been established.

1. Grant

This perhaps is the most easily disposed of contention of the plaintiff. Although plaintiff asserts "grant" as a possible doctrine for relief both in the pre trial order on file herein and their memoranda of law, it would appear that this theory was either included inadvetantly or abandoned at the outset of the controversy. Plaintiff points to no evidence adduced on trial which would permit the inference of a transfer by defendants to the public of any interest in the subject property by way of grant and no authority has been cited by plaintiff supporting such a contention.

2. Ancient Custom

Plaintiff's attempt to rely upon the doctrine of ancient custom and cite in support thereof State ex rel Thornton vs Hay, 254 Or 584 (1969). In that regard, it first appears that the case at bar may be distinguished factually from the Hay case in that it dealt with the dry-sand beach area which lays westerly or below the so called vegetation line or coordinate line established by 390.605 et seq., and this case deals with the upland lying easterly of that same line. Secondly, the general public has always assumed that the dry-sand area was a part of the public beach, that the dry-sand area cannot be used conveniently for any purpose other than recreation, that the dry-sand area is unstable in its seaward boundaries, unsafe during winter storms, and for the most part unfit for the construction of permanent structures. State ex rel Thornton vs Hay, supra, p. 589. Just the opposite is true of the subject property as the evidence has established.

Furthermore, the elements of the doctrine of ancient custom have not been established in this case. First of all, the record in this case does not satisfy the requirement of antiquity. It is to be noted that in Hay it was ascertained that the aboriginal inhabitants of the Oregon shore used the drysand area. The proof herein falls far short of that length of usage. Next, the ancient custom requirement of certainty has not been satisfied herein. There are no visible or other well-defined boundaries of the sand dune area or any characteristics of the same which limits its use to recreation in connection with the foreshore. Plaintiffs have also failed to establish the requirement that ancient custom be obligatory. That is to say, the record herein does not establish that the upland sand dune area has been used, as a right, uniformly, with similarly situated lands elsewhere and that the public's use has never been questioned by similarly situated upland owners. The proof is to the contrary. There are many miles of such sand dunes in Clatsop County alone to which this doctrine could have no application. State ex rel Thornton vs Hay, supra, p. 596.

3. Dedication

Plaintiff contends that the doctrine of implied dedication has established public easement rights to the subject property.

The doctrine of dedication was well defined in Harris vs. St. Helens, 72 Or 377 (1914), at p. 386:

"Dedication is an appropriation of land to a public use, made by the owner, and accepted for such by or on behalf of the public . . . An implied dedication may be shown by some [3 ELR 20292] act or course of conduct on the part of the owner from which a reasonable inference of his intent may be drawn, or which is inconsistent with any other theory than that he intended a dedication."

The Court says further at p. 388,

"It is clear that, to constitute a dedication, the owner must intend to devote his property to a public use, and this intention must be clearly and unequivocally manifested by his acts."

Although some ambiguous authorities in this area exist (e.g. Kennedy vs Portland, 92 Or 300 (1919), the afore stated principles are still applicable. Muzzy vs Wilson, 259 Or 512 (1971). It should also be noted: "In some jurisdictions where the intention to devote land to a public use is doubtful, such doubt is resolved against the donor, but such is not the rule in this State." Security and Investment Co. vs. Oregon City, 161 Or 421 (1939).

In this case there simply is no proof of a clear and unequivocal manifestation of any owner's intention to impliedly dedicate the subject property to a public recreational use. In that connection, it is interesting to note in the Court's opinion in State ex rel Thornton vs Hay, supra, p. 592, ". . . it is unlikelythat the land owners thought they had anything to dedicate, until 1967, when the notoriety of legislative debates about the public's rights in the dry-sand area sent a number of ocean front landowners to the offices of their legal advisers." Certainly this would hold true as well over the immediately abutting upland.

Plaintiff relies heavily upon the combined cases of Gion vs City of Santa Cruz and Dietz vs King, 465 Pac.2nd 50 (1970). In Gion, the California Court upheld the public recreational interest in a parking lot-ocean headland. In Dietz, such rights were preserved in an ocean beach and road access thereto. However, these cases are factually a far cry from the case at bar. In Gion, it should be noted that the land in question has actually been under the control of the city government for many years and that huge sums of public money have been spent to improve and maintain it. In Dietz, from the description of the property in the opinion, it would appear that the public easement there is in a dry-sand beach area and in a road that had been used by the public for more than 100 years in much the same manner as the beach area described in State ex rel Thornton vs Hay, supra. Nothing appears that could physically equate the beach there to the upland sand dune herein. Also, so far as the matter of the beach road is concerned in Dietz, it should be noted that the defendant developers in the case at bar are by express dedication granting to the public access over and through the sand dune area in an improved fashion than has existed before.

DECREE

This suit for a declaratory decree came on regularly for trial before the undersigned judge of the above-entitled Court commencing September 13, 1972. Plaintiff appeared by Philip J. Engelgau and Louis S. Bonney, assistant attorneys general of the State of Oregon. Defendants W. C. Bauman, Robert G. Bauman, W.C. Bauman Co., Inc., and Howard S. Wright Construction Co. appeared by their attorney, George L. Kirklin. Defendant Franklin Service Corporation appeared by its attorney, C. E. Wheelock, and defendant Paula Munson Penny appeared by her attorney, Lawrence M. Dean. Western Environmental Trade Association, appearing as Amicus Curiae, was represented by its attorney, Henry A. Buehner.

Opening statements were presented and evidence introduced on behalf of the various parties. The court thereafter took the matter under advisement pending study of the memoranda of law submitted by the parties after trial, a review of the authorities cited by the parties, and an examination of the testimony and exhibits. The court having reviewed and analyzed the evidence and applicable law, and having filed on February 23, 1973 its opinion finding and holding that plaintiff failed to establish the existence of a public recreational easement in and to the subject property, or the right to an injunction, and the Court having adopted said opinion as its findings of fact and conclusions of law, it is hereby

ORDERED, ADJUDGED and DECREED as follows:

1. No recreational easement exists in favor of the general public in the property described in Plaintiff's Exhibit 1 to the pretrial order in this case, and said property is not subject to any right in the public to go upon the use the property for recreational purposes;

2. The erection of structures upon said property will not constitute a purpresture or a public nuisance, and plaintiff is not entitled to an injunction enjoining defendants from erecting structures upon and otherwise developing said property;

3. A decree is hereby entered in favor of defendants and against plaintiff, and defendants shall have and recover their costs and disbursements incurred herein and taxed at $190.40.

DATED at Astoria, Oregon, this 12th day of March 1973.