March April 2018

The Oregon Surveyor | 20 Vol. 41, No. 2 The Federal Land Rights Series activity, setting the stage for future difficulties for those who would later acquire the impacted properties. Riparian property owners frequently fail to react promptly to riv- er movement, even when they realize that a given watercourse forms a boundary of their property, for a variety of reasons. Very often in remote areas river movement simply goes entire- ly unobserved, so land owners have no idea that the acreage to which they hold title is either expanding or contracting, while in other cases they notice the change, but they are unaware of its legal significance, or they have no idea how to address such is- sues, thus they take no timely action. Such a scenario unfolded in Section 35 during the twentieth century, as the land owners in that section evidently paid little if any attention to the river, and their disregard for the legal component of the river’s activity was destined to victimize 2 subsequent grantees, named Van- derpol and Swinger, several decades later, as the twenty-first century arrived. Vanderpol acquired the eastern portion of Lot 8 in Section 35, along with the western portion of the south- west quarter of Section 36, by means of a typical warranty deed in 2002, but the evidence indicates that he was using that land, and perhaps occupying it as well, as early as the 1980s, presum- ably as a tenant farmer. The portion of Section 36 lying directly east of Lot 9, like Lot 8 in Section 35, consisted of productive farmland, and since no one had ever acquired Lot 9 there was nothing physically preventing the prior owners of the proper- ties acquired by Vanderpol from using all of the land southeast of the river at any given time, thus they did so. The ground for- merly occupied by the river, and the area directly west thereof, between the old and new river channels, apparently remained somewhat wet and less than ideal for use as cropland however, so the row crops which were planted in Section 36 by Vanderpol and his predecessors did not extend across the section line into that area. Instead, the area containing Lot 9 and the formerly submerged land along its west side was used by them along with the land directly to the south comprising Lot 8 as pasture, and that area contained many substantial trees, giving it a park like appearance, while also indicating that at least a few decades, if not several decades, had passed since the river had moved to the west, long prior to Vanderpol’s arrival on the scene. Vanderpol may or may not have known that Lot 9 was unpat- ented land when he acquired his property in Sections 35 and 36, but even if he did know that Lot 9 was federal property, like most typical grantees he apparently felt entirely comfortable relying upon the established land use pattern outlined above, therefore he simply perpetuated it, using the same land area that his grantor had been using, in the same manner. Shortly after making his land acquisition in 2002 Vanderpol sold off all of his land in Section 36, retaining the eastern portion of Lot 8 in Section 35, but there is no indication that any surveys were done during that time period, so the exact location of the sec- tion line and the existence of Lot 9 may very well have remained unclear to him. Thus Vanderpol was evidently quite content with his small farm, occupying the eastern portion of Lot 8, with his farmhouse situated near the south end of his property, on the high ground far from the river, and presumably he felt like he had gotten a very good deal in 2002, since he also had complete use of all of the land lying southeast of the river bends in his section as an undisturbed pasture for his cattle, representing a substantial expansion of the property which was deeded to him. Although Vanderpol and his predecessors never had any reason to question or investigate the land rights associated with Lot 9, because no one ever asserted any rights to that area and no one ever tried to make any use of that land or prevent the on- going private use thereof, that long standing peaceful situation was about to change, unexpectedly and dramatically, with the arrival of a newcomer, who had just enough knowledge of the law to bring conflict to this area. It may be worthy of note at this point that no controversy ever arose regarding the navigability status of the Nooksack River, and all of the private parties evi- dently viewed the relevant portion of that river as being legally navigable at all times, therefore no one ever made any claims expressly involving riverbed ownership. In addition, Washington never set forth any claim of title to either the originally platted riverbed or the relocated river channel, and there is no indica- tion that anyone representing the state was ever alerted to the fact that the river’s location had changed substantially over the preceding 130 year period. Exactly when Swinger became interested in land in the Nooksack region, leading him to acquire the southeastern portion of Lot 1 in Section 35, is unknown, but there is no indication that he ever had any interaction or communication with Vanderpol or any other local land owners prior to making his acquisition, so he appears to have been a stranger with no knowledge of local history, although its also possible that he may have inherited his land in Lot 1 from a deceased ancestor. A public highway cross- es the southern portion of Lot 1 from east to west, but there are no bridges across the river anywhere nearby, so Swinger should have recognized that the land directly across the river to the southeast was in use by Vanderpol and that Swinger’s part of Lot 1, all lying south of the highway, was bounded on the southeast by the river. Yet Swinger was apparently convinced, for unknown reasons, that his portion of Lot 1 included some of the land being used by Vanderpol on the opposite side of the river. Swinger may very well have been unaware of the ex- istence of Lot 9, situated directly across the river from his land, as there is no indication that he ever saw the 1873 GLO plat depicting that lot, and since it had never been patented no oth- er evidence of its existence appeared in any deeds, so he may have mistakenly believed that Lot 1 had always covered the en- tire southeast quarter of the northeast quarter of Section 35. Its equally possible however, that Swinger was informed by his grantor about the historical westward movement of the river, so his belief that he held title extending to the east, beyond the river’s contemporary location to the river channel of 1873, could well have been based upon his faith in the accuracy of what he had been told about the historical activity of the riv- er. Nonetheless, in 2008 Swinger placed his land in Section 35 in trust, and for unknown reasons he subsequently ordered a title report, triggering research into the land rights associated with Lot 1, which provided Swinger with another perspective pertaining to his property boundaries. The full contents of the title report that was created for Swinger are unknown, but he took issue with it because it indicated that he did not hold clear title to any land southeast of the river, and it confirmed that he had no right of access to any land currently lying on the south- east side of the river. After reviewing his title report, Swinger remained insistent that Lot 1 had never been reduced in size by any river movement and that he therefore owned land on Vanderpol’s side of the river, so in 2011 he proceeded to file an action pursuant to that position against his title company, charging among oth- er things that the company was liable to him for the apparent