PLSO Oregon Surveyor Nov/Dec 2019

Professional Land Surveyors of Oregon | www.plso.org 17 Featured Article resolution in question, while also holding that the state was under no obligation to compel the city to allow public access to the lake through any existing city parks. This Year’s Ruling In May of 2018, the legal combat was rejoined at Aloha High School, as the Supreme Court of Oregon deemed it ap- propriate to allow interested students to learn first hand how the sausage is made, as the old expression goes, in the legal arena, and 15 months later the High Court announced in effect that both low- er courts had gotten it wrong, primarily because they discounted the legal signif- icance of the absence of any conclusive determination of the navigability status of the lake. In its initial remarks, the Court prompt- ly directed the attention of the litigants to the central nature of the crucial nav- igability issue: “We conclude that, if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public’s right to enter the water from the abutting waterfront parks … if plaintiffs are correct that the lake is a navigable waterway subject to the public trust doctrine, then genuine issues of material fact preclude a deter- mination on summary judgment that the city is authorized to prohibit the public from entering the water.” Having pointed to the existence of a le- gal pathway, down which the plaintiffs could potentially find success, by pre- vailing on the navigability question, the Court proceeded to remind the litigants and their associates of the bifurcated na- ture of the navigability concept: “In Oregon, two related doctrines create a public right to use certain bodies of water, regardless of who owns the abutting up- land. The first applies to bodies of water that are considered navigable as a matter of federal law. Title to the lands underly- ing those navigable waters passed to the state when Oregon was admitted into the Union, to be held in trust for public uses … the second doctrine recognizes a pub- lic right to use other waterways, even if title to the underlying land is privately held, as long as the water is navigable in a qualified or limited sense.” In so doing, the Court also noted the or- igin of the qualified navigability concept, which emerged in Oregon over a centu- ry ago, having sprung from the Court’s earliest decisions on the subject of naviga- bility, which required the Court to resolve disputes over the use of small streams by loggers, thereby acknowledging the log floating easement, a product of Or- egon’s Nineteenth Century economy, as the first judicially approved expansion of the title navigability concept in Oregon: “In addition to that doctrine of public own- ership of the lands underlying navigable bodies of water, Oregon also enforces the public’s right to use other water- ways that are navigable in a qualified or limited sense … the right of public use initially was applied primarily to facili- tate the floating of logs down rivers that did not meet the federal test for naviga- bility … the same doctrine, however, has long recognized that the public has a su- perior right to use the water for other navigational purposes, including a boat used for the transportation of pleasure- seeking passengers.” The Court also quite poignantly informed the parties that the broad and legally pow- erful concepts of public trust and public use, although similar in certain respects, are not synonymous, while emphasizing the primacy of the public side of that de- cisive equation: “For waterways subject to the public trust doctrine, the public has a right to use water because the state owns the un- derlying land in trust for the public, while for waterways subject to the public use doctrine, the underlying land remains privately owned … however, for either category of waterway, the public has the paramount right.” Having introduced and expounded upon the public use concept however, for pur- poses of clarification through a review of historically related material and issues, the Court next proceeded to explain why that concept could not provide a path to victory for the plaintiffs and their allies, agreeing with the Court of Appeals that any riparian property boundary formed by the ordinary high water mark of a continues on page 18 T As documented on the original 1852 GLO plat of T2S R1E, the footprint of Sucker Lake spanned the full width of Section 9, but reached only a modest distance, less than a quarter mile, into adjoining sections 8&10, prior to the artificial augmentation to which the lake was subsequently subjected.