Sea River Properties, LLC v. Parks ( 2014 )

No. 53 August 14, 2014 831
IN THE SUPREME COURT OF THE
STATE OF OREGON
SEA RIVER PROPERTIES, LLC,
an Oregon limited liability company,
Petitioner on Review,
v.
Loren E. PARKS,
an individual,
Respondent on Review.
Loren E. PARKS,
an individual,
Third-Party Plaintiff,
v.
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.
(CC 062011; CA A145896; SC S061094)
On review from the Court of Appeals.*
Argued and submitted September 20, 2013.
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.
______________
*  Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 253 Or
App 643, 291 P3d 1 (2013).
832 Sea River Properties, LLC v. Parks
Before Balmer, Chief Justice, and Kistler, Walters,
Linder, Landau, and Baldwin, Justices.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are reversed. The case is remanded to the
circuit court for further proceedings.
Plaintiff filed action to quiet title to land that had accreted along the cen-
tral Oregon coast adjacent to plaintiff and defendant’s land. Defendant counter-
claimed, asserting that it took title on the same grounds that plaintiff alleged.
The trial court determined that the land accreted to plaintiff’s property and
ordinarily would belong to plaintiff except that defendant had acquired title to
the land by adverse possession. The Court of Appeals affirmed, concluding that
defendant took title to the land as a result of the law of accretion. Held: (1) in
Oregon, land formed by accretion to upland belongs to the owner of the upland
where the accretion began; (2) the doctrine of lateral accretion does not apply to
these facts; and (3) defendant failed to establish by clear and convincing evidence
actual, continuous, and exclusive use of the accreted land and therefore did not
take title to it by adverse possession.
The decision of the Court of Appeals and the judgment of the circuit court
are reversed. The case is remanded to the circuit court for further proceedings.
______________
**  Brewer, J., did not participate in the consideration or decision of this case.
Cite as 355 Or 831 (2014) 833
KISTLER, J.
Plaintiff Sea River and defendant Parks own adjoin-
ing 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 approxi-
mately 40 acres of land west of those lots and south of the
Nehalem River’s southern jetty.1 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 prop-
erty, arguing that it owned the property on the basis of its
record title, through the law of accretion, or by adverse pos-
session. 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 dis-
puted 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 accre-
tion. The Court of Appeals affirmed the judgment, conclud-
ing 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
P3d 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.
1
On appeal and review, the parties have referred to the accreted land as con-
sisting of approximately 40 acres. There is evidence in the record that the area
may be smaller. The exact amount of the area does not affect our resolution of the
issues that the parties raise on review.
834 Sea River Properties, LLC v. Parks
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 find-
ings 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 summa-
rize 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
Cite as 355 Or 831 (2014) 835
Figure 1: 1858. The Nehalem River
in its northern channel.
a small, triangular piece of land (represented by the trian-
gle 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.2
2
Maps portraying Section 17, Lot 4 in 1911 show the Nehalem River flowing
southward, with a small strip of tidelands to the east and a wider swath of tide-
lands fronting the Pacific Ocean to the west. At low tide, a tidal bar to the west of
the river sometimes emerged. At high tide, the ocean ordinarily covered it.
836 Sea River Properties, LLC v. Parks
Figure 2: 1911. The Nehalem River shifts to the south,
eroding Section 17, Lot 4.
By 1911, the Army Corps of Engineers began build-
ing 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 south-
ern 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 por-
tions that the Nehalem River had eroded before the 1920s.
Cite as 355 Or 831 (2014) 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 4.3 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
3
It appears from the record that the bed of McMillan Creek may be dry for
parts of the year.
838 Sea River Properties, LLC v. Parks
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 4.4 In 1924, Wright conveyed Section 17, Lot
4 by warranty deed to one of defendant’s predecessors in
interest.5 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 abut-
ting Government Lot 4, in Section 17.”
Plaintiff’s title traces back to Riley, who had pur-
chased a 10-acre parcel that included Lots 1 and 2 of Section
20 in 1944 and subdivided the land for sale to several dif-
ferent 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 col-
lateral 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 prop-
erty on the basis of its record title, accretion, or adverse pos-
session. Defendant counterclaimed, asserting ownership on
the same grounds.
Both the trial court and the Court of Appeals con-
cluded that, because neither party’s deed could be conclu-
sively interpreted to include the disputed property, the law
of accretion would determine the parties’ property rights
4
Alderman owned Section 17, Lot 4 when the state foreclosed on it. Although
Hiatt may have transferred title to the tidelands fronting and abutting Lot 4 to
Alderman, the state did not expressly foreclose on the tidelands separately from
Lot 4. Similarly, the patent deed that the state later issued to Wright in 1908
included Section 17, Lot 4, but it did not refer to the tidelands.
5
The trial court noted that the record does not contain a deed from Wright
to one of defendant’s predecessors in interest for Section 17, Lot 4. The parties do
not dispute, however, that such a deed existed.
Cite as 355 Or 831 (2014) 839
to it. In deciding the question of accretion, the trial court
heard extensive expert testimony about the geological devel-
opment 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 center-
line of that creek. Finally, the trial court found that, after
the federal government constructed the Nehalem River jet-
ties, 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 P2d 803 (1959) (stating that prin-
ciple). 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 P2d
735 (1997) (discussing that doctrine).
Applying those rules to the facts, the trial court con-
cluded that, because the accretion began along the upland of
Section 20, Lot 1, the owners of that lot (plaintiff’s prede-
cessors 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 accre-
tions to Section 20, Lot 1, held title to the disputed property.
The trial court, however, also found that defendant satisfied
840 Sea River Properties, LLC v. Parks
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 defen-
dant 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 dis-
agreed 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 where-
upon that new land was formed is the controlling consider-
ation” in determining property rights to accreted land. Id. at
653. It found that either the state or defendant’s predeces-
sors 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 inter-
est 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] predeces-
sor” 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
rest of Lot 4.” Id. The court concluded that, because defen-
dant’s predecessors in interest retained the tidelands west
of the Nehalem, the doctrine of lateral accretion gave them
title to all accreted land lying above the southern bound-
ary of Section 17, Lot 4 and west of that lot. Id. at 654 and
n 4. Having held that defendant was entitled to the disputed
property under the doctrine of lateral accretion, the Court of
Appeals did not reach defendant’s adverse possession claim.
We allowed plaintiff’s petition for review to consider
the principles that apply when land accretes on tideland and
Cite as 355 Or 831 (2014) 841
also to consider the doctrine of lateral accretion, which this
court has not previously recognized.
II.  ACCRETION AND LATERAL ACCRETION
On review, the parties dispute primarily two issues
regarding accretion. The first issue is whether, under Oregon
law, accreted land belongs to the owner of the upland (plain-
tiff) to which the accreted land attached or whether it belongs
to the owner of the tidelands over which the accreted land
formed (arguably defendant).6 The second issue is whether,
even if the accreted land ordinarily would belong to plain-
tiff, the doctrine of lateral accretion requires that defendant
get title to part of the accreted land to give him access to the
Pacific Ocean.
We first explain the law of accretion in Oregon and
how it applies to this case. We then consider defendant’s
argument that an equitable exception to the law of accretion
(the doctrine of lateral accretion) applies in these circum-
stances.
A.  The Law of Accretion
Accretion is a geological process by which new land
forms when sand, silt, or soil is gradually and imperceptibly
deposited on the edge of existing land.7 Near tidal waters,
existing land consists primarily of upland and tidelands.
Upland is simply “land” in the ordinary sense of the word,
lying beyond the farthest point that tidal water ordinarily
reaches. See Smith Tug v. Columbia-Pac. Towing Corp., 250
Or 612, 614, 443 P2d 205 (1968) (defining upland). It may
front an ocean or lake (in which case, the land is described
as “littoral”) or a river or stream (“riparian”). Darling v.
Christensen, 166 Or 17, 35, 109 P2d 585 (1941) (so defin-
6
We say “arguably” because the parties disagree whether defendant owned
the tidelands west of the Nehalem over which the accreted land formed.
7
The conventional understanding of accretion is that it consists of two mech-
anisms, alluvion and reliction. Alluvion is a process by which sediment (also
called alluvion) is gradually deposited onto the edge of upland, whereas reliction
is a process by which land that was once submerged is uncovered by a gradual
shift in the location of water. The legal principles controlling property rights to
accreted land apply equally to both types of accretion. See Hanson v. Thornton,
91 Or 585, 590, 179 P 494 (1919); 1 Water and Water Rights § 6.03(b)(2) (Robert
E. Beck & Amy K. Kelley, eds, 3d ed 2009).
842 Sea River Properties, LLC v. Parks
ing those terms); Black’s Law Dictionary 1018, 1441 (9th ed
2009). Tideland is submersible land “usually or ordinarily
covered and uncovered every 24 hours by the action of the
tides.” Sause, 217 Or at 67. It lies between the line of ordi-
nary high water (high waterline) and the line of ordinary
low water (low waterline) of a tidal body of water. See ORS
274.005(8) (defining submersible land).8
In a typical case of accretion near tidal water, winds
and tides gradually and imperceptibly deposit sand or other
sediments onto the edge of upland contiguous to the shore.9
Over decades, the deposits build up and combine into new
land, pushing the boundary of the upland outward to the
water. Because the upland portion of the area grows out-
ward, and conversely, the high waterline moves seaward,
the process of accretion necessarily pushes the boundaries
of tidelands seaward as well. To put the point even more
simply: Tidelands move. When new land accretes to existing
upland, the high and low waterlines shift, and the tideland
next to the upland moves seaward. Conversely, when land
gradually erodes because a tidal water body or watercourse
has shifted position, the upland recedes and the tidelands
shift accordingly. See generally Land Bd. v. Corvallis Sand
& Gravel, 283 Or 147, 161-62, 582 P2d 1352 (1978) (explain-
ing that upland boundaries move with the high waterline).
Since antiquity, the rule of accretion has been that
gradual and imperceptible additions of new land to exist-
ing upland become the property of the upland owner. See,
e.g., William Blackstone, 2 Commentaries on the Laws of
England 262 (1765) (citing to Justinian’s Institutes).10 Our
8
The line of ordinary high water is “the line on the bank or shore to which
the high water ordinarily rises annually in season.” ORS 274.005(3). The line of
ordinary low water is “the line on the bank or shore to which the low water ordi-
narily recedes annually in season.” ORS 274.005(4).
9
The process of sudden and perceptible shifts in water bodies and water
courses causing changes to land is called avulsion. Generally, avulsion does
not change property rights. See Sause, 217 Or at 80; 1 Water and Water Rights
§ 6.03(b)(2).
10
For a history of the doctrine of accretion, see Joseph L. Sax, The Accretion/
Avulsion Puzzle: Its Past Revealed, Its Future Proposed, 23 Tul Envtl LJ 305, 313
(2010). Sax explains that the origins of the American understanding of accretion
stem from Blackstone’s account, which itself is based on the Abbot of Ramsey’s
case of 1369.
Cite as 355 Or 831 (2014) 843
case law has frequently recognized and adhered to that
principle. Corvallis Sand & Gravel, 283 Or at 161; Purvine v.
Hathaway, 238 Or 60, 64-64, 393 P2d 181 (1964); Sause, 217
Or at 82; Hoff v. Peninsula Drainage Dist., 172 Or 630, 638-
39, 143 P2d 471 (1943); State v. Imlah, 135 Or 66, 74, 294 P
1046 (1931); accord Hughes v. Washington, 389 US 290, 293,
88 S Ct 438, 19 L Ed 2d 530 (1967).
In Imlah, for instance, the state sought to quiet
title to accreted land in the Willamette River. Imlah, 135
Or at 67. The state claimed that an island had arisen in
the middle of the river, the bed of which it owned, and that
the disputed land had attached initially to the island and
grown gradually towards the defendants’ land on the west-
ern shore. Id. at 70. It followed, the state reasoned, that it
owned the land that accreted between its island and defen-
dants’ land on the western shore. This court accepted the
legal premise underlying the state’s claim. It explained that
“where an island arises in a stream, the title to the bed of
which is in the state, [the island and any accreted land that
attaches initially to the island] does not belong to the owner
of either shore.” Id. The court, however, explained that the
state’s premise did not match the trial court’s factual find-
ings, which were “that the accretions grew from the shore of
the mainland and not from the island.” Id. at 71. Because the
accretions had attached initially to the defendants’ property
on the western shore and had grown outward into the river
(and had not started on the island and grown toward the
shore, as the state had argued), the accreted land belonged
to the defendants. Id. at 74.
Another way of explaining the law of accretion is
that, for littoral or riparian land, when the high waterline
changes location because of accretion (moving the upland
seaward), the property boundary moves with the water. See
Corvallis Sand & Gravel, 283 Or at 161-62. Similarly, after
erosion, when a waterway gradually changes positions with
the effect of covering land and moving the upland edge land-
ward, the property boundary also moves. See id. A riparian
or littoral owner takes title to land that forms by accretion
and loses title to land destroyed by erosion. See Sause, 217
Or at 82.
844 Sea River Properties, LLC v. Parks
The policies underlying the rule of accretion stem
primarily from two rationales. The first rationale is that
accretion, because it occurs gradually and imperceptibly
over long periods of time, is a small concern for most prop-
erty owners. Most property owners barely notice such insig-
nificant, slow changes, and it is more efficient to grant title
to the contiguous landowner, who likely has the greatest
interest in making the gradual additions useful, than to
anyone else. See Sause, 217 Or at 79 (quoting Blackstone
explaining that “in [accretion] cases the law is held to be,
that if [the increase to land] be by little and little, by small
and imperceptible degrees, it shall go to the owner of the
land adjoining. For de minimis non curat lex * * *”). A second
rationale is that riparian or littoral owners have a property
interest in accessing the water that their land borders. See
Imlah, 135 Or at 74. In most cases, when accretions extend
from upland directly in front of riparian or littoral property,
preserving access to that water favors giving the accreted
land to the upland owner.
As our case law has established, the rule of accre-
tion in Oregon (as well as elsewhere) is that accreted land
belongs to the upland owner where the accretion began. If a
party establishes that the accreted land first attached to his
or her property, that party ordinarily takes title to it. In this
case, the trial court heard extensive testimony and made
detailed factual findings about the formation of the disputed
land. Ultimately, it accepted plaintiff’s expert’s opinion that
“the accreted property attached to Lot 1 in Section 20 and
grew north and east” until it reached its current location
west of Section 17, Lot 4 and south of the southern jetty.
There is evidence to support those findings, and we accept
them. Given those findings and the law of accretion, we hold
that the trial court correctly concluded that, because the
disputed property initially attached to Section 20, Lot 1 and
grew northerly and northeasterly from that point, plaintiff’s
predecessors in interest took title to that property under the
law of accretion.
Defendant’s contrary argument starts from the
premise that his predecessors in interest acquired title to
the tidelands west of the Nehalem River in 1883 and that the
Cite as 355 Or 831 (2014) 845
disputed property formed over those tidelands. Defendant
argues that, because “the owner of submerged land is the
owner of dry land that subsequently forms on it,” the trial
court should have held that he has title to the disputed prop-
erty. Neither the premise nor the legal principle on which
defendant’s argument rests is well taken.
We begin with the premise of defendant’s argument.
In 1883, the state granted William Hiatt all the tidelands
“lying west of and fronting and abutting” Lots 2, 3 and 4 in
Section 17. Plaintiff does not dispute that that grant gave
Hiatt (and through Hiatt, defendant) title to the tidelands
adjacent to Section 17, Lot 4.11 Defendant argues, however,
that the state’s deed to Hiatt also gave Hiatt title to the tide-
lands that lay on the other side of the Nehalem, which at
the time of Hiatt’s deed was a navigable river up to 600 feet
wide and 26 feet deep. Defendant bases his argument on two
phrases in the 1883 deed to Hiatt—“fronting and abutting”
and “lying west of.”
In interpreting a deed, a court must “ascertain
and give effect to the intentions of the parties, as evidenced
by the language of the instrument and the circumstances
attending its execution.” Wirostek v. Johnson, 266 Or 72, 75,
511 P2d 373 (1973). We start with the language of the 1883
deed. Ordinarily, a grant of tidelands that “front” a particu-
lar piece of property conveys title to the tidelands “in front of
the lo[t] mentioned” and extends “to [the] low-water mark,
wherever the same might be then or afterward.” Fellman
v. Tidewater Mill Co., 78 Or 1, 7, 152 P 268 (1915). It does
not convey title to the tidelands that lie on the other side of
the river (or ocean). Were there any doubt about the matter,
the word “abutting” removes it. A grant of tidelands “front-
ing and abutting” Lot 4 gave Hiatt only those tidelands that
bordered on or were contiguous to Lot 4. See Websters’ Int’l
11
The record does not disclose a link between the title to the tidelands that
the state deeded Hiatt in 1883 and Wright, one of defendant’s predecessors in
interest. It may be that, in foreclosing on Section 17, Lot 4 and later deeding
that lot to Wright, the state inadvertently omitted a reference to the tidelands.
Whatever the reason for the omission, we question whether defendant’s title to
the tidelands traces to the 1883 deed to Hiatt. It may trace only to the 1924 quit-
claim deed that Wright gave one of defendant’s predecessors in interest. Plaintiff,
however, does not press the point, and we assume for the purposes of this case
that defendant can base his claim to the tidelands on the 1883 deed to Hiatt.
846 Sea River Properties, LLC v. Parks
Dictionary 9 (1907) (defining abut as “to border” or “to be
contiguous”).12
Defendant also relies on the first part of the phrase
in the 1883 deed to Hiatt, “all the tide lands lying west of”
Lot 4. Defendant argues that we should give all the words
in the deed effect and that, if the phrase “fronting and abut-
ting” refers only to the tidelands that are adjacent to Lot 4,
then “lying west of” Lot 4 must convey the tidelands on the
other side (the western side) of the Nehalem. Otherwise, the
phrase “lying west of” would be superfluous.
We note, as an initial matter, that the deed to Hiatt
conveys the tidelands “lying west of” Lot 4. It does not con-
vey the tidelands “lying west of” the Nehalem. In our view,
the more natural reading of the entire phrase is the one that
the trial court gave it—the phrase “all the tidelands lying
west of and fronting and abutting” Lot 4 identifies three
restrictions on the tidelands granted to Hiatt; that is, the
tidelands granted to Hiatt lie west of Lot 4; they front that
lot; and they abut it. Put differently, the phrase “fronting
and abutting” defines which tidelands to the west of Lot 4
Hiatt took.
Although the trial court’s reading of the 1883 deed
is the more natural one, its reading does make the phrase
“lying west of” superfluous, as defendant reasons. Because
some ambiguity inheres in the text, we accordingly consider
the circumstances surrounding the execution of the 1883
deed. See Wirostek, 266 Or at 75 (noting that consideration).
As defendant notes, the state granted the 1883 deed to Hiatt
12
Defendant argues that Fellman is consistent with his claim that a grant
of tidelands “fronting and abutting” his property conveyed not only the tidelands
adjacent to his property but also the tidelands on the other side of the river.
Defendant misperceives both the issue in Fellman and what that case held. The
defendant in Fellman argued that a grant of tidelands fronting or abutting a
particular property gave the grantee only the “metes and bounds described in
the survey of the tide-lands as they then were” and that tidelands granted in
that way did not move as the upland moved. 78 Or at 6. The court rejected that
argument and held that “[t]he rule is that the purchaser of tide-land takes to the
low-water mark, that afterward he is entitled to follow that line to the utmost of
its recession, and that he acquires title to the accretions which gradually form
upon his original grant.” Id. at 7. Fellman neither held nor suggested that a grant
of tidelands fronting and abutting property on one side of a river grants tidelands
on the other side of the river.
Cite as 355 Or 831 (2014) 847
pursuant to the 1872 Tide Lands Act. See Or Laws 1872,
p 129, as amended by Or Laws 1874, p 76. A stated purpose
of that act was to encourage the owners of “soil abutting
upon the coast” and tidal rivers to build structures to pre-
vent the “washing away [of] the shores and [the] shoaling
[of] such bays, harbors, and inlets.” Or Laws 1872, p 130
(reciting one purpose of the act). The act gave the owners
of “any land abutting or fronting upon or bounded by” tidal
waters the right to purchase from the state the tidelands
“in front of” their land. Id. § 1. With one exception, the act
required an applicant seeking to purchase tidelands to pro-
vide proof that he or she held “title to land which abuts or
fronts upon or is bounded by such tide lands” before the state
could sell those tidelands to the applicant. Id. § 3.13
Viewed against that backdrop, the meaning of the
state’s 1883 deed to Hiatt becomes clear. The 1872 act autho-
rized the state to sell tidelands to persons whose land “abuts
or fronts upon or is bounded by” those tidelands. That autho-
rization confirms the natural interpretation of the language
in the 1883 deed to Hiatt: The tidelands that the state con-
veyed to Hiatt were the tidelands that abutted or fronted and
bounded Lot 4. Those were the tidelands on the eastern side
of the southern channel of the Nehalem. Hiatt (and Hiatt’s
successors in interest) did not take title to the tidelands on
the other side of the river. As the trial court found, when
the Nehalem later shifted to its northern channel and the
southern channel became a non-navigable creek, the title to
the tidelands that defendant and his predecessors obtained
from Hiatt stopped at the thread or center of that creek. See
Kingsley v. Jacobs, 174 Or 514, 523, 149 P2d 950 (1944).14
Defendant’s title does not extend any farther west.
13
Section (5) of the 1872 act stated the exception. It provided that, if the
adjacent landowner had not applied to purchase the tidelands within a year after
the passage of that act, then the tidelands could be purchased by other Oregon
residents. Two years later, the legislature amended section (5) to provide that, if
anyone other than the owner of the adjacent land sought to purchase tidelands,
notice must be given to the landowner adjacent to the tidelands and that, if the
adjacent landowner applied to purchase the tidelands, the adjacent landowner
would be given preference. Or Laws 1874, pp 77-78.
14
When a party owns the tidelands contiguous to a navigable tidal river, that
party owns to the ordinary low waterline. If the river becomes non-navigable,
that party owns to the center or thread of the non-navigable stream. See Kingsley,
174 Or at 523.
848 Sea River Properties, LLC v. Parks
It follows that the premise of defendant’s claim to
the disputed property fails. If defendant or his predeces-
sors in interest did not hold title to the tidelands west of
the Nehalem, then we need not decide the correctness of the
legal proposition that defendant advances—that the owner
of tidelands on which dry land forms owns that land—to
decide defendant’s claim to the disputed property. Plaintiff,
however, also asserts that it owns the disputed property as
a result of accretion, and the Court of Appeals accepted the
legal proposition that defendant advances here in concluding
that plaintiff did not acquire title to the disputed property.
To determine whether the trial court correctly ruled other-
wise, we consider briefly the merits of the legal argument
that defendant advances.
Defendant cites a United States Supreme Court
decision and an Oregon Court of Appeals decision to sup-
port the proposition that “the owner of submerged land is
the owner of dry land that subsequently forms on it.” The
legal principle on which defendant relies is correct insofar
as it applies to islands, sand bars, and other dry lands that
emerge from water unconnected to other dry land. But nei-
ther case on which defendant relies goes further than that.
In the first case, the United States Supreme Court recog-
nized that dry land (an island) that formed in the middle of
a river unconnected to the shore belonged to the owner of
the submerged land on which the island formed. St. Louis
v. Rutz, 138 US 226, 245, 11 S Ct 337, 34 L Ed 941 (1891)
(applying Illinois law). The Court also recognized that
accreted land that attached to the island belonged to the
owner of the island. Id. at 247. The Court neither held nor
suggested that land that attaches initially to upland and
forms over tideland belongs to the owner of the tideland.
The rule that defendant asks us to draw from Rutz is con-
trary to well-established principles of accretion; nothing
suggests that the Court departed from those principles in
Rutz.
The second case is to the same effect. In Bonnett, a
spit of land formed from a northern lot called “Northpoint”
and grew southward down the Siuslaw River’s main channel
Cite as 355 Or 831 (2014) 849
in front of plaintiff’s lot.15 151 Or App at 147-79. Starting
from the spit, land accreted and grew east toward plain-
tiff’s lot, eventually attaching to it. Id. The issue in Bonnett
was whether the plaintiff owned the newly formed land that
attached to his lot. The court came to two conclusions. First,
it concluded that someone other than the plaintiff owned
the tip of the spit where the accreted land formed. Id. at
150. To support that determination, it reasoned that it was
most sensible to treat the spit as if it were an island (a “spit
island”) that arose on the tidelands across the channel from
plaintiff’s lot. Id. at 153. Because “the owner in fee of the
bed of a river, or other submerged land, is the owner of any
bar, island or dry land which subsequently may be formed
thereon,” see Rutz, 138 US at 247, the Court of Appeals
assumed that the owner of the “spit island” ordinarily would
be the State of Oregon. Bonnett, 151 Or App at 153. Second,
it concluded that, because the accretions had started on that
“spit island,” the accretions belonged to whoever owned the
spit island, and that person was not the plaintiff. Id.
Put another way, the court in Bonnett applied two
sets of principles. One set pertained to the ownership of
islands, tidal bars, and elevations that form within tide-
lands, unattached initially to any land on the shore. The
other set controlled ownership of land that forms by attach-
ing to upland through accretion and grows outward, push-
ing the boundaries of the tideland with it. The principles
relating to islands and sand bars were relevant because, to
decide who takes title to land formed by accretions, the court
first had to determine who owned the property (in Bonnett,
the spit island) where the accretions began.
Neither set of principles helps defendant in this
case. Rather, the first set makes clear that the principle
that defendant invokes here—that the owner of submerged
land is the owner of dry land that subsequently forms on
it—is limited to islands, sand bars, and the like that arise
in the midst of a body of water, unconnected initially to any
15
Of course, neither the United States Supreme Court’s application of Illinois
law in Rutz nor the Court of Appeals’ interpretation of Oregon law in Bonnett con-
trols our resolution of Oregon law here. We consider those cases for their persua-
sive value only.
850 Sea River Properties, LLC v. Parks
dry land. The second set confirms that plaintiff owns the
disputed property, which attached to Section 20, Lot 1 and
grew north and east by accretion. Far from advancing defen-
dant’s argument, the reasoning in Bonnett undercuts it.
Indeed, the principle on which defendant’s tideland-
ownership reasoning relies is at odds with the method that
Oregon courts and other courts have used to determine
property rights to accreted land. If defendant were correct,
instead of identifying the upland to which the accreted land
attached and who owns the upland, as in Imlah or Bonnett,
courts would look simply to who owned the underlying tide-
lands, riverbed, or lake floor. In most instances, the state
would own it, and, if defendant’s rule were correct, the
state would take a large portion of accretions to littoral and
riparian land. As our cases show, however, that is not the
rule in Oregon. The controlling principle is that the upland
owner takes accretions that began forming on the upland.
Applying that principle to the trial court’s factual findings,
we agree with the trial court that plaintiff acquired title to
the disputed property as a result of accretion.
B.  Lateral Accretion
Ordinarily, under the law of accretion, an upland
owner takes accretions to his or her upland without qual-
ification. Defendant, however, argues that an exception to
the rule of accretion—called lateral accretion—provides a
second ground for quieting title in his favor. That excep-
tion applies when land accretes to one owner’s property and
then extends laterally in front of another owner’s property,
blocking that owner’s access to water. In those instances,
some courts have recognized that one of the purposes that
underlies the doctrine of accretion—preserving access to
water—is frustrated. See Lamprey v. Metcalf, 52 Minn 181,
197, 53 NW 1139 (1893) (noting the “incalculable mischiefs
that would follow if a riparian owner is liable to be cut off
from access to the water, and another owner sandwiched in
between him and it”). To avoid the inequity in allowing one
landowner’s right to the accretions that attached to his land
to cut off an adjoining landowner’s access to water, lateral
accretion emerged as a doctrine that allows courts to appor-
tion accreted land among multiple property owners.
Cite as 355 Or 831 (2014) 851
This court has never recognized the doctrine of lat-
eral accretion. Two cases from other states, however, illus-
trate the doctrine. In the first case, the plaintiff owned a plot
of land along the inlet of a lake. Rondesvedt v. Running, 19
Wis 2d 614, 615, 121 NW2d 1 (1963). The water directly in
front of the property was shallow—about a foot deep—and
beyond that shallow water lay the deeper water of the lake.
Id. Ordinarily, the plaintiff could walk through the shallow
water to the deeper water. Id. at 620. Over a long period
of time, however, land accreted to her neighbor’s property
and created a small strip between the shallows directly in
front of her property and the deeper water beyond it. Id. The
result was that the plaintiff could no longer get to the deeper
water in the lake without crossing the small strip of dry
land now connected to her neighbor’s land. Id.
The plaintiff argued that, even though the strip had
accreted to her neighbor’s land, she should take title to the
part that obstructed her access to the lake. The Wisconsin
Supreme Court agreed. Id. at 620. It reasoned:
“[The plaintiff’s lot] before the accretion occurred, had
access to the open water of the lake by traversing the shal-
lows in a direct line from any portion of her shore. She may
still reach open water, but because of the process of accre-
tion may not do so by water in a direct line from all parts
of her shore.”
Id. The court accordingly apportioned the accreted land as
the plaintiff had requested. Id. at 621.
Similarly, in the second case, a “highly unusual
accretion” formed at the mouth of the Copalis River on the
coast in central Washington. Hudson House, Inc. v. Rozman,
82 Wash 2d 178, 179, 509 P2d 992 (1973). The accretion
started from land south of a Washington State park and
extended northerly up the coast into a long spit between the
Copalis River to the east and the Pacific Ocean to the west,
blocking the “ocean frontage” that the park previously had
enjoyed. Id. at 178-81. As the court explained, the park “once
had frontage directly on the Pacific Ocean, but the growth of
the accretion has come between the park and the ocean.” Id.
at 181. To maintain the park’s access to the ocean, the court
invoked the doctrine of lateral accretion and apportioned the
852 Sea River Properties, LLC v. Parks
accreted land. Id. at 181, 184; see also Waring v. Stinchcomb,
141 Md 569, 119 A 336 (1922) (apportioning land where
accreted land simultaneously changed the course of the out-
let channel of a river and blocked access to the Chesapeake
Bay for an owner whose property, before the accretion, was
contiguous to the Bay).
We draw two separate but related principles from
those cases. First, the doctrine of lateral accretion applies
when the accreted land that ordinarily would belong to
one landowner cuts off an adjoining landowner’s access to
a body of water. Second, in that circumstance, some courts
divide the accreted land to permit the adjoining landowner
to maintain access to that body of water.
In this case, even if we were to recognize the doctrine
of lateral accretion, defendant’s invocation of the doctrine fails
to satisfy those prerequisites. Specifically, defendant invokes
the doctrine of lateral accretion to obtain access to the Pacific
Ocean. However, as the trial court found, the formation of the
disputed property, which began in the 1920s, did not cut off
defendant’s land from the Pacific. Rather, defendant’s land
no longer bordered on the Pacific, as a result of a shift in
the Nehalem and the consequent erosion of Section 17, Lot 4,
some 40 years earlier. Indeed, when the disputed property
began forming in the 1920s, Section 17, Lot 4 bordered only
on the Nehalem, which access that lot still enjoys.16 Defendant
fails to explain how the doctrine of lateral accretion permits
a court to divide the disputed property so that he can obtain
land fronting the Pacific Ocean when the formation of the
disputed property was not the event that caused him to lose
access to the Pacific in the first place. Even if we were to rec-
ognize the doctrine of lateral accretion, and we need not do
so to resolve defendant’s lateral accretion claim, defendant
provides no reason to think that equity permits him to parlay
river frontage into ocean frontage.
Defendant advances two arguments in support of a
different conclusion. He argues initially that not only did the
16
Referring to a 2005 map, plaintiff states in its brief on merits “that the
portion of Lot 4 with tidelands fronting and abutting it still has access to the
Nehalem River over the river tidelands, as was the case in 1911.” In defendant’s
brief on the merits, he does not take issue with that statement.
Cite as 355 Or 831 (2014) 853
Pacific Ocean form the western border of Section 17, Lot 4, in
1858, but also that the Pacific remained the western border
of Lot 4 when the process of accretion that formed the dis-
puted property began in the 1920s.17 Defendant’s argument
is at odds with the trial court’s factual findings regarding
the Nehalem’s shift to its southern channel in the 1880s and
the resulting erosion (and permanent loss) of much of Lot 4.
The record supports the trial court’s findings, which effec-
tively dispose of defendant’s first argument.
Defendant argues alternatively that, even if the
Nehalem fronted his property in the 1920s when the accre-
tion to Section 20, Lot 1 began, the same situation was true
in both Hudson House and Bonnett. He reasons that, in
those cases, a navigable river lay between the riparian own-
er’s property and the ocean. He argues that, because neither
case “treated the navigable river channel as cutting off the
riparian owner’s littoral rights to the Pacific,” we should not
do so here.
We read those cases differently. In Hudson House,
the court explained that the state park “once had frontage
directly on the Pacific Ocean, but the growth of the accretion
has come between the park and the ocean.” 82 Wash 2d at
181. Put differently, the process of accretion was the cause
of the park’s loss of ocean frontage, and the court accord-
ingly exercised its equitable power to divide the accreted
land between the park and the party that otherwise would
have acquired title to all the accreted land. In this case, the
trial court found that the process of accretion that gave rise
to the disputed property was not the cause of Lot 4’s loss of
ocean frontage. That loss occurred approximately 40 years
before the disputed property began accreting to Section 20,
Lot 1.
17
Defendant argues that erosion “is the result of the body of water that bor-
ders the property cutting into the former upland.” He contends that, because the
Pacific Ocean bordered Section 17, Lot 4 in the 1850s, only the Pacific Ocean
could have caused the erosion that changed the shape and size of Section 17, Lot 4
by the early twentieth century. In support of that position, defendant cites Sause,
217 Or at 69. We find no support there, or in any other case, for so limited an
understanding of erosion. The trial court found that the Nehalem River caused
the erosion in this case and that, because of the erosion, Section 17, Lot 4 ceased
bordering the Pacific Ocean. We conclude that those findings do not arise from
any error of law or misunderstanding of the principles underlying erosion.
854 Sea River Properties, LLC v. Parks
Similarly, in Bonnett, it was the growth of what the
court referred to as a “spit island” and the accretion that
attached to that island that deprived the plaintiff’s land
of ocean access. See 151 Or App at 151. In that respect,
Bonnett is like Hudson House and different from this case.
Neither case provides a basis for saying that equity permits
a court to divide accreted land to preserve access to a body
of water when the process of accretion did not cause the loss
of access. Because the factual predicates for apportioning
the disputed property under the doctrine of lateral accretion
are not present here, we need not recognize that doctrine to
decide this case. It suffices to hold that the doctrine, as other
courts have articulated it, does not apply to these facts.18
We reaffirm that, in Oregon, land formed by accretion
to upland belongs to the owner of the upland where the accre-
tion began. We also hold that the doctrine of lateral accretion,
even if we were to recognize it, does not apply here. Accepting
the trial court’s findings, we hold that plaintiff’s predecessors
in interest, and plaintiff through them, took title to the dis-
puted property as a result of the law of accretion.
III.  ADVERSE POSSESSION
Because we agree with the trial court that plain-
tiff’s predecessors in interest acquired title to the accreted
property, the remaining question is whether defendant later
acquired title to that property by adverse possession. In
considering that issue, we refer to the accreted property as
“plaintiff’s property.” Doing so more accurately frames the
question whether defendant’s use of plaintiff’s property is
sufficient to establish that he adversely possessed it.
We begin by identifying the elements necessary
to prove an adverse possession claim. At common law, to
succeed on an adverse possession claim, a claimant had to
prove, by clear and convincing evidence, six elements: “that
the use of the property was actual, open, notorious, exclu-
sive, continuous, and hostile for a 10-year period.” Hoffman v.
Freeman Land and Timber, LLC., 329 Or 554, 559, 994 P2d
18
Similarly, we do not consider a subsidiary issue that the parties raise—
how, if the doctrine of lateral accretion applied, the disputed property should be
apportioned between plaintiff and defendant. Defendant urges us to follow dicta
in Bonnett; plaintiff argues that that dicta runs counter to the majority rule in
states recognizing the doctrine of lateral accretion.
Cite as 355 Or 831 (2014) 855
106 (1999). In 1989, the Oregon legislature codified those six
common-law elements and added one more—a person claim-
ing adverse possession must have an honest belief through-
out the 10-year period that he or she is the actual owner. See
Or Laws 1989, ch 1069, § 1 (enacting ORS 105.620).19
In this case, plaintiff concedes that defendant’s use
of the property was open, notorious, and hostile. Plaintiff
argues, however, the evidence does not establish actual, con-
tinuous, and exclusive use for a 10-year period, nor does it
establish, plaintiff contends, that defendant reasonably had
an honest belief that he owned the property. In analyzing
plaintiff’s argument, we accept the trial court’s findings of
historical fact that are supported by the evidence.20 Whether
those historical facts establish the elements of an adverse
possession claim presents a legal issue. See Hoffman, 329
Or at 564.21 Applying that standard of review, we set out the
historical facts consistently with the trial court’s findings.
19
ORS 105.620 provides:
“(1)  A person may acquire fee simple title to real property by adverse posses-
sion only if:
“(a)  The person and the predecessors in interest of the person have main-
tained actual, open, notorious, exclusive, hostile and continuous possession of the
property for a period of 10 years;
“(b)  At the time the person claiming by adverse possession or the person’s
predecessors in interest, first entered into possession of the property, the person
entering into possession had the honest belief that the person was the actual
owner of the property and that belief:
“(A) By the person and the person’s predecessor in interest, continued
throughout the vesting period;
“(B)  Had an objective basis; and
“(C)  Was reasonable under the particular circumstances; and
“(c)  The person proves each of the elements set out in this section by clear
and convincing evidence.”
20
Although we have discretion to review the trial court’s factual findings
de novo, ORS 19.415(4), we decline to exercise that discretion and accept the trial
court’s findings of historical fact that are supported by the evidence, as we did in
considering the parties’ competing accretion claims.
21
In Hoffman, this court “accept[ed] the facts as found by the Court of
Appeals and limit[ed] our review to questions of law.” Id. at 556. This court then
ruled that, contrary to the Court of Appeals conclusion on one of the elements,
the historical facts were not “significant enough” to establish hostility. Id. at
564. Rather, this court concluded that the historical facts “tip[ped] the scales”
the other way on hostility. Id. Following Hoffman, we conclude that the question
whether the historical facts are “significant enough” to establish actual, continu-
ous, and exclusive use presents a legal issue for appellate courts.
856 Sea River Properties, LLC v. Parks
In 1981, defendant bought a vacation house in
Nedonna Beach. Defendant’s beach house is near Section 17,
Lot 4 and plaintiff’s property, but it is not located on either
parcel of land. Defendant’s son testified that, after his father
bought the beach house in 1981, the son and the son’s daugh-
ter “stayed there quite a bit.” They generally went there during
“vacation times, the summertime, or weekends” because, at
that time, the son’s daughter was in school. Initially, they
visited the beach house “maybe five to eight times” a year. As
his daughter got older, they visited the beach house “maybe
two, three times a year,” and the son visited there “once or
twice a year” on his own and then “off and on” up to the time
of trial. When the son and his daughter visited the beach
house, they would walk along the trails on plaintiff’s prop-
erty or along the jetty, which lies outside plaintiff’s property.
They also had “several wiener/marshmellow roasts against
the jetty,” and defendant’s son did “some fishing off the jetty.”
Defendant testified that, after he bought the beach
house in 1981, he visited the house “quite a bit. [He] would
go down there weekends, especially in the summertime, and
even in the wintertime.” His visits were “quite frequent the
first few years [he] had the house.” During that time, he
used plaintiff’s property “for recreation,” which consisted of
“going along the trails” and “walk[ing] out to the jetty from
time to time.”
Eight years later, in 1989, defendant purchased
Section 17, Lot 4. The real estate agent represented and
defendant understood (inaccurately as it turns out) that
Section 17, Lot 4, included the property that we have deter-
mined belongs to plaintiff. After defendant purchased
Section 17, Lot 4, he “continue[d] using [plaintiff’s prop-
erty] for recreational purposes.” Defendant also gathered
firewood on plaintiff’s property and once improved “one of
the roads [on plaintiff’s property] a little bit” by “cut[ting]
some branches that had grown into the roadway.” He cut the
branches “so [he] could get [his] truck back there and get
firewood.”
Defendant did not testify how frequently, after 1989,
he visited his beach house and walked over plaintiff’s property.
Cite as 355 Or 831 (2014) 857
In 2001 or 2002, defendant left Oregon “to move and estab-
lish a business in Las Vegas.”
When asked whether other people in the Nedonna
Beach area also used plaintiff’s property for recreational
purposes, defendant answered, “All the time.” He explained
that “some of them have camped there, and some of them
just walk the trails.” Defendant testified that he has “seen
trailers parked on the property, and [he has] seen guys go
back, especially [on holidays], and they camp back there
someplace.” Defendant’s testimony on that point was con-
sistent with the evidence from other witnesses, who testi-
fied to the public’s use of plaintiff’s property for recreational
purposes.
After defendant bought Section 17, Lot 4 in 1989,
the county tax records erroneously described plaintiff’s
property as belonging to defendant. Defendant accordingly
has paid taxes on the value of that land. Additionally, he
granted two public bodies easements over plaintiff’s prop-
erty (one in 1995 and the other in 2000). He also entered
into an agreement in 1998 with a third public body permit-
ting it to cut brush to preserve a sight line. We discuss those
agreements in greater detail below.
After considering that evidence, the trial court
found that defendant “has continuously claimed ownership
of [plaintiff’s] property.” The court concluded:
“There is *  * clear and convincing evidence that [defen-
*
dant] made actual use of the property. Actual use is estab-
lished if a claimant establishes a use of the land that would
be made by an owner of the same type of land, taking into
account the uses for which the land is suited. [Defendant]
granted easements to parts of the property to third par-
ties and granted other and third parties access to the prop-
erty. He engaged in litigation to protect his interest in the
property. He rejected [plaintiff’s predecessor in interest’s]
claims of ownership and offers of compromise. He was
shown as record owner of the property. He paid property
taxes on the property.”
The trial court did not separately address each element—
actual, continuous, exclusive, hostile, open, and notorious
use—necessary to establish adverse possession. Nor did
858 Sea River Properties, LLC v. Parks
it identify a specific 10-year period in which it concluded
that those aspects of defendant’s use coalesced. Rather, it
appears to have concluded that defendant acquired title to
plaintiff’s property by adverse possession based primarily
on defendant’s claim of ownership, his payment of taxes, the
two easements he granted to the public bodies, and the per-
mission he gave another public body to cut brush to main-
tain a sight line.
On appeal and review, plaintiff has conceded that
the evidence establishes that defendant’s use of its property
was open, notorious, and hostile. Plaintiff argues, however,
that defendant failed to establish actual, exclusive, and con-
tinuous use of the property for a 10-year period.22
We take the last point first. To acquire title by
adverse possession, defendant had to prove by clear and
convincing evidence that all the elements necessary to
establish adverse possession existed for a single 10-year
period. ORS 105.620(1)(a); Hoffman, 329 Or at 559. In this
case, however, defendant has never identified one 10-year
period in which those elements coalesced. Plaintiff, for its
part, has argued that the 10-year period must begin some-
time after defendant purchased Section 17, Lot 4 in 1989,
and defendant has not explained on appeal or review why
plaintiff’s argument is incorrect. 23 We accordingly consider
only the roughly 21-year period from 1989 (when defendant
purchased Section 17, Lot 4) to May 14, 2010 (when defen-
dant first asserted a counterclaim for adverse possession).
22
Plaintiff also argues that the evidence does not establish that defendant’s
belief that he owned the property was reasonable. We need not resolve that issue
because we conclude that the evidence does not establish actual, continuous, and
exclusive use.
23
In its opening brief in the Court of Appeals, plaintiff argued that “[defen-
dant] cannot rely on Publishers [defendant’s immediate predecessor in interest]
to complete his adverse possession claim.” Plaintiff reasoned that defendant could
tack to a period of time during which Publishers owned Section 17, Lot 4 only
if defendant established that Publishers’ use of plaintiff’s property during that
period satisfied all the elements necessary to prove an adverse possession claim.
Plaintiff argued that defendant had not done so. Defendant has not explained in
the briefs that he filed on appeal and review why plaintiff is wrong on that point,
although he recited that Publishers had leased land to the City of Rockaway
Beach and had given a license to the city. At one point during oral argument,
defendant’s attorney stated in passing that defendant should be able to tack to
Publishers’ use, but he did not explain why Publishers’ use was sufficient for it to
adversely possess against plaintiff’s predecessor in interest.
Cite as 355 Or 831 (2014) 859
See Real Estate Co. v. Hendrix, 28 Or 485, 496, 42 P 514(1895) (considering whether the elements necessary to prove
adverse possession had been established “for a period of
more than ten years immediately preceding the commence-
ment of this suit”).
Within that 21-year period, defendant still does not
identify which 10-year period he believes establishes his
adverse possession claim. The omission is problematic. As
explained below, defendant identifies essentially three cat-
egories of use that, in his view, establish his actual, con-
tinuous, and exclusive use of plaintiff’s property. However,
not all those uses have occurred continuously from 1989
to 2010. Some did not start until the latter part of that
21-year period. Other uses may have occurred with greater
frequency in 1989 but have diminished as time passed. In
determining whether any or all of those uses are sufficient
to prove actual, continuous, and exclusive use, the question
is whether a sufficient combination of those uses occurred
within a single 10-year period. With that temporal focus in
mind, we turn to defendant’s arguments.
As we understand defendant’s argument, he identi-
fies essentially three categories of use: (1) paying taxes on
plaintiff’s property since 1989; (2) using plaintiff’s property
for recreational purposes; and (3) granting two easements
and giving a third party access to plaintiff’s property. We
begin with defendant’s payment of taxes.
Paying taxes to a county tax collector is not an
actual use of land. Rather, it is an act that manifests a claim
of ownership, as this court has recognized for more than 100
years. In Real Estate Co., for example, the plaintiff’s imme-
diate predecessor in interest had acquired title to a 140-acre
tract of land, platted the land as the town of Cornelius, and
then sold part of the land to the plaintiff in 1872. 28 Or
at 490, 496. From 1872 until 1891, the plaintiff “appointed
persons living at Cornelius to act as its agent [and] paid the
taxes annually assessed on the property most of the time
* * *.” Id. at 496. When it turned out that the plaintiff’s pre-
decessors in interest had not acquired good title to the land,
the plaintiff argued that it had acquired title to it by adverse
possession. Id.
860 Sea River Properties, LLC v. Parks
This court held that the plaintiff had failed to
establish sufficient actual occupancy or use of the land to
prove adverse possession. As the court recognized, “[i]t must
be admitted that the plaintiff claimed title to the locus in
quo.” Id. at 497.24 The court explained, however, that “never
having occupied any portion of the premises, [the plaintiff’s]
claim of ownership, in the absence of occupancy, can never
become the foundation of an adverse right.” Id. at 497. The
court reasoned that to establish that it had occupied the
land, the plaintiff would have show actual possession of the
land. Id.
Since Real Estate Co., this court has viewed pay-
ment of taxes as “substantial evidence of claim of owner-
ship,” while reaffirming that “payment of taxes alone” is not
sufficient to prove actual possession or actual use of the land.
Knecht v. Spake, 218 Or 601, 607-08, 612, 346 P2d 98 (1959).
The court accordingly has required proof of actual, open,
notorious, exclusive, continuous, and hostile use to establish
an adverse possession claim. Id. at 609-10. Following Real
Estate Co. and Knecht, we conclude that defendant’s pay-
ment of taxes on plaintiff’s property established a claim of
ownership, but it does not establish defendant’s actual, con-
tinuous, or exclusive use. Defendant must establish that use
some other way. See Real Estate Co., 28 Or at 497. We turn
to the two remaining “uses” that defendant has identified.
Defendant argues that his family’s use of plain-
tiff’s property for recreational purposes after 1989 estab-
lishes actual, continuous, and exclusive use. As noted,
defendant testified that his visits to his beach house were
“quite frequent” for the first few years after he bought the
beach house in 1981. The record, however, does not disclose
how frequently or infrequently defendant visited the beach
house or walked over plaintiff’s property after 1989, when
he bought Section 17, Lot 4. Similarly, defendant’s son testi-
fied that he and his daughter visited the beach house five to
eight times a year after his father bought the house in 1981.
As the daughter grew older, however, their visits diminished
24
The court did not specify which acts gave rise to the plaintiff’s claim of
ownership. However, it had noted that the plaintiff had paid taxes on the land
since 1872.
Cite as 355 Or 831 (2014) 861
to “maybe two, three times a year,” and the son visited the
beach house once or twice a year on his own. On those occa-
sions when defendant or his family would visit the beach
house after 1989, they would walk on the trails over plain-
tiff’s property to the ocean or back to the jetty.
We assume that defendant and his family’s rec-
reational use of plaintiff’s property after 1989 constituted
“actual use.” We question whether their occasional use
established “continuous” use for a 10-year period. We rec-
ognize that whether an adverse possessor uses land contin-
uously will vary with the nature of the land. See Allison v.
Shepherd, 285 Or 447, 452, 591 P2d 735 (1979) (“An adverse
possessor need only establish an occupation or use of the
land that would be made by an owner of the same type of
land, taking into account the uses for which the land is
suited.”). However, because defendant and his family never
testified how frequently they visited the area or walked over
plaintiff’s property after 1989, it becomes more difficult
to say that defendant has proved, by clear and convincing
evidence, “continuous” use of plaintiff’s property for a 10-year
period.
Even if, however, defendant and his family’s rec-
reational use of plaintiff’s property were continuous, their
use was not exclusive. As noted, plaintiff’s property consists
of approximately 40 acres of undeveloped grassy beach on
which a stand of trees and other flora grow near a small
creek. Like the other coastal land nearby, it is a natural
place for walking or picnicking. After testifying that he
explored the trails on plaintiff’s property on those occasions
when he visited his beach house, defendant explained that
other visitors to Nedonna Beach also used plaintiff’s prop-
erty for recreational purposes “[a]ll the time.” As defendant
testified, other people routinely camped on plaintiff’s prop-
erty, parked their trailers there, and went back on the trails
that cross the property.
When, as in this case, defendant and his family’s use
of plaintiff’s property is the same as or similar to other fami-
lies’ use of that property, their use was not exclusive. Indeed,
this case is difficult to distinguish from Fry v. Woodward,
221 Or 39, 350 P2d 183 (1960). In that case, the land was
862 Sea River Properties, LLC v. Parks
“low land, with brush, trees, and berry bushes” and remained
unimproved except for a single fence. Id. at 41. The area was
“largely used for picnics, swimming and fishing by all adja-
cent neighbors and the public generally.” Id. at 42. For that
reason, among others, the court concluded that defendants’
use was “far from exclusive,” inasmuch as it “appear[ed] to
have been in common with every one else.” Id. at 44.25
Because defendant and his family’s recreational use
of plaintiff’s property is not sufficient to establish actual,
continuous, and exclusive use for a 10-year period, we also
consider the other category of “use” that defendant has
identified—three agreements with local governmental bod-
ies. In 1995, defendant granted an easement to the City
of Rockaway for two backup wells and a related waterline
that are situated on plaintiff’s property. In 1998, he agreed
to permit the Port of Nehalem to cut brush to maintain a
sight line. Finally, in 2000, he granted an easement to the
Tillamook Peoples Utility District for an underground util-
ity line just north of Section Line Road.
Defendant’s agreements with those local govern-
mental bodies are relevant to his adverse possession claim
in one respect. The act of entering into each agreement is
a one-time manifestation of a claim of ownership, similar
to payment of property tax. None of those acts, however,
evidences defendant’s actual occupation or actual use of
plaintiff’s property. Rather, they reflect his authorization for
someone else to use plaintiff’s property. Perhaps recogniz-
ing that difficulty, defendant argues that the city, the utility
district, and the port’s subsequent use of plaintiff’s prop-
erty is attributable to him. That is, he argues that the city,
25
Defendant also relies on the fact that, when he visited his beach house, he
would gather firewood on plaintiff’s property and that once he “cut some branches
that had grown into the roadway” on plaintiff’s land “so [he] could get [his] truck
back there and get firewood.” Not only does a single instance of cutting some
branches to maintain a road not establish continuous use, but occasionally gath-
ering firewood on undeveloped land that the public routinely uses for recreational
uses is not a sufficiently distinct use to be exclusive. See Hamilton v. Flournoy,
44 Or 97, 102, 74 P 483 (1903) (engaging in the same uses as others did not con-
stitute actual and exclusive use); cf. Wheeler v. Taylor, 32 Or 421, 436, 52 P 183(1898) (explaining that “occasionally cutting and carrying away rails and fire-
wood from land chiefly valuable for timber was not such an open, notorious and
continuous occupancy as would give title” under an adverse possession claim).
Cite as 355 Or 831 (2014) 863
the utility district, and the port’s use of plaintiff’s property
establishes his actual, continuous, and exclusive use of it. In
considering that argument, we begin with the easements he
granted the city and the utility district.
This court has long recognized that a principal
can base an adverse possession claim on his or her agent’s
use of land. Springer v. Durrette, 217 Or 196, 203, 342 P2d
132 (1959). An agent acts on the principal’s behalf, and the
agent’s acts are attributable to the principal for the purpose
of an adverse possession claim. See id. In this case, however,
the utility district and the city were not defendant’s agents,
nor were they even his lessees. Rather, defendant granted
the utility district and the city a property interest (an ease-
ment) in plaintiff’s property that, once granted, the utility
and the city owned. It is difficult to see how, having divested
himself of an interest in property, defendant can rely on a
subsequent owner’s use of that property interest to establish
his own use.
To put the point a different way, if the utility dis-
trict and the city wanted to bring an adverse possession
claim against plaintiff, the utility district and the city could
perhaps tack to defendant’s use. However, defendant can-
not tack to their use. Having divested himself of an interest
in the property, defendant cannot rely on the subsequent
owner’s use to establish his use. Cf. Riverwood Commercial
Properties, Inc. v. Cole, 138 NH 333, 336, 639 A2d 714 (1994)
(holding that granting various easements was insufficient
as a matter of law to establish the grantor’s adverse posses-
sion claim); State v. Heard, 199 SW2d 191, 195 (Tex Civ App
1946), aff’d, 146 Tex 139, 204 SW2d 344 (1947) (rejecting
an argument that an asserted easement over another’s land
gave rise to an adverse possession claim).26
26
We note that, from 1989 to 1995, defendant was the apparent successor in
interest to a lease and a license that Publishers Paper had given the city for two
backup wells and a related waterline that were on the property. As a result of dis-
putes with the city, defendant ordered the city to “cease and desist” its activities
on the property in 1993 and brought a trespass action against the city in 1994.
Even if defendant could rely on the city’s use of the property as his lessee from
1989 to 1995 to establish his own use, he still faces at least two difficulties. That
use does not establish use for a 10-year period. Moreover, defendant told the city
that it had no right to be on the property and sued it for trespass, actions that are
difficult to reconcile with his reliance on the city’s use.
864 Sea River Properties, LLC v. Parks
Defendant also signed an agreement with the Port
of Nehalem on June 6, 1998, which gave the port the right to
cut brush to keep sight lines open between range finders and
the end of the Nehalem Bay jetty.27 As the court explained
in Real Estate Co., however, the right to use property differs
from the actual use of that property; only the latter counts
in determining whether there has been actual use that will
support an adverse possession claim. 28 Or at 497. The
record shows that, if port employees ever entered onto plain-
tiff’s property pursuant to the agreement, they did so only
occasionally. Even assuming that the port employees’ entry
onto plaintiff’s property is attributable to defendant, their
occasional use does not constitute the sort of continuous use
that will establish adverse possession.
Whether viewed individually or collectively, defen-
dant’s recreational use of the plaintiff’s property and the
third parties’ use of that property are not “significant
enough” to establish, by clear and convincing evidence,
actual, continuous, and exclusive use of the property for a
single 10-year period. Cf. Hoffman, 329 Or at 564 (employ-
ing that standard). The uses are either non-exclusive (defen-
dant’s recreational use), or they are not continuous (the
port’s use and perhaps defendant’s recreational use). Some
of the uses on which defendant relies (the easements) are not
attributable to him, and his payment of taxes constitutes a
claim of ownership but not actual use of the property.
Beyond that, those uses do not all occur within the
same 10-year period. On the one hand, defendant’s recre-
ational use, to the extent it occurred after 1989, occurred
more frequently initially and diminished as time passed. On
the other hand, defendant did not agree to permit the port to
enter plaintiff’s property until 1998, and it is unclear when
or how frequently after that date port employees actually
entered the property. Taking the trial court’s findings of
historical fact as true, we conclude that defendant’s use of
plaintiff’s property does not establish, by clear and convinc-
ing evidence, actual, continuous, and exclusive use of that
property for a 10-year period.
27
The range finders allow boats coming in from the ocean to line up at the
channel and enter the Nehalem River.
Cite as 355 Or 831 (2014) 865
We summarize our conclusions briefly. We agree
with the trial court that plaintiff’s predecessors in interest
(and plaintiff through them) acquired title to the accreted
property. We disagree with the trial court that defen-
dant acquired title to that property by adverse possession.
Because the trial court erred in entering judgment in defen-
dant’s favor based on adverse possession and because the
Court of Appeals erred in affirming that judgment based on
accretion, we reverse the trial court’s judgment and Court of
Appeals decision. We remand this case to the trial court for
entry of a judgment consistent with this decision.
The decision of the Court of Appeals and the judg-
ment of the circuit court are reversed. The case is remanded
to the circuit court for further proceedings.