State Land Board v. Port of Portland

PER CURIAM.

This is an action by the State Land Board against the Port of Portland to recover royalties for riverbed material taken from the Columbia River. The Port appeals from a judgment for the State Land Board.

In 1959 the Port dredged fill material from the river for use in connection with airport improvements and industrial sites. It is agreed that 170,500 cubic yards of material were used more than one-half mile from the bank of the Columbia River. The state demands royalties for this amount only, and concedes that no payment is due for the balance of the material taken.

The Port contends that it need not pay for any of the material because, it says, the material was not used for a “commercial” purpose. We need not decide in this case whether the material was used commercially, because that question is irrelevant. The state correctly points out that under the then controlling statutes the duty to pay for the material taken arises from its use beyond the half-mile limit, and not because the use was a “commercial” one. General Laws of Oregon 1920 ((Special Session), ch 32, is the forerunner of ORS 274.540 to 274.580. In 1953 the original statute, as amended from time to time during the intervening years, was reenacted as Oregon Laws 1953, ch 181, the pertinent part of which reads as follows:

“* * * The removal of gravel, rock, sand, silt or other material from the bed or bars of any navigable stream within the state is authorized when the same is removed for channel or harbor improvement or flood control, and the removal of gravel, rock, sand, silt or other material from the 'bed or bars of any navigable stream ‘within the State of Oregon is authorized when the material is used for filling, diking or reclaiming land located not more than one-half mile from the bank of the stream. No payment of royalty shall be required for such gravel, rock, sand, silt or other material unless the same shall hereafter be removed from the place deposited and sold or used as an article of commerce. Before any such material may be removed from the place deposited and sold or used as an article of commerce, the State Land Board shall be duly notified in writing of such intended removal and sale or use as an article of commerce and payment shall be made to said State Land Board of such royalty as the board may fix therefor. In addition to the purposes above enumerated, any person may take gravel, rock, sand, silt or other material for his own exclusive use to the extent of not more than 50 cubic yards in any one year. Any person, firm or corporation, before taking gravel, rock or sand from state properties, except in the manner and for the purposes aforementioned in this section, shall apply to the State Land Board for a lease, and such application shall be accompanied by a map or plat showing the premises. Upon receipt of such application and map or plat the State Land Board may award a lease to the applicant and fix a royalty. The establishment or placing of a dredging or digging outfit on any waters or stream, the bed of which belongs to the State of Oregon, and the removal of material from the bed thereof for commercial uses, without having applied for and received a lease, hereby is declared to constitute a continuing trespass.

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In the preparation of the Revised Statutes, the foregoing statute was divided into several sections. These sections, since 1953, have been found in ORS ch 274. Recent versions appear in the accompanying opinion. Two or more of the sections may appear to be in conflict with each other when read separately. See, e.g., the provision in ORS 274.680 which the defendant contends should be read as if it required only those using material for commercial purposes to comply with the other relevant sections of the chapter. The conflict, however, is more apparent than real. When the original act as adopted by the Legislative Assembly is read as a whole, it is clear that freedom from liability for rentals is granted for the removal of material for only those purposes named in the original act, whether commercial or noncommercial. ORS 274.540 provided at all material times:

“Before any person shall take any gravel, rock or sand from state properties, except in the manner and for the purposes mentioned in ORS 274.550, he shall apply to the State Land Board for a lease, and such application shall be accompanied by a map or plat showing the premises. Upon receipt of such application and map or plat the State Land Board may award a lease to the applicant and fix a royalty.”

This section prohibited the removal of stream-bed materials without payment of a royalty unless the use falls within one of the exceptions mentioned in ORS 274.550. The prohibition in ORS 274.540 is not stated in terms of the commercial or noncommercial character of the use. Consequently the removal of materials for any purpose is prohibited without payment of a royalty unless the use is within one of the exceptions in ORS 274.550.

When the relevant sections are read together, particularly in the form in which they were enacted, it is clear that the legislature intended that the state be paid for any materials removed, in excess of 50 cubic yards in any year, unless the material was used for filling, diking, or reclaiming land located not more than one-half mile from the bank of the stream. Since the Port used that portion of the material for which payment is demanded in this action beyond the half-mile limit, the trial court correctly construed the statutes as requiring payment.

Affirmed.