PLSO Oregon Surveyor Nov/Dec 2019

18 The Oregon Surveyor | Vol. 42, No. 6 lake, such as the one in contention, lim- its application of the public use doctrine to the ground below that line, thereby acknowledging the legal sanctity of the private status of typical riparian upland properties: “The doctrine of public use does not extend to … access across the abutting upland to reach the public water … public use … is an easement to use the water … the pub- lic have an easement for the purposes of navigation and commerce, but … the nav- igability of the stream does not give to the navigator a right of way on the land … the right of navigation ceases at the wa- ter’s edge … above the high-water mark.” A successful outcome, from the stand- point of the plaintiffs and their friends, the Court informed them, though not impossible, as the lower courts had er- roneously concluded, could be reached only through pursuit of the public trust pathway, turning the spotlight upon the key role played in this litigation by the state, as a public trustee: “Federal law determines whether a body of water is navigable … although title passed to the state to lands underlying the navigable waters of the state, the state’s rights were merely those of a trust- ee … the state represents the people … in their united sovereignty … state’s rights to land underlying navigable waters are merely those of a trustee for the public … our cases to date, however, have not addressed whether public ownership … underlying publicly-owned waters in- cludes any right of access to that water … if plaintiffs are able to establish that Os- wego Lake is navigable, under the federal test, then the lands underlying the lake remain … in trust for the public.” A mere right to use the water, under the public use doctrine, was not enough to justifymandatory public access to the lake, the Court decided, but if the state’s pub- lic trust obligations apply to the lakebed, then the plaintiffs have a potential path to victory, which was improperly unrec- ognized by the lower courts. Only if the plaintiffs could prove the presence of bed- land navigability however, in the fee title context, in accord with federally estab- lished title navigability standards, would they then have a viable platform, the Court indicated, from which to call upon state personnel to utilize their powers as public trustees to nullify the preven- tative resolution adopted by the city and thereby open an avenue of access to the lake, across the land comprising at least one of the relevant public parks, free of the lake access prohibition put in place by the city. “The city may not unreasonably interfere with … the public trust … the validity of the waterfront resolution depends upon … issues of material fact … the list of perti- nent material facts, of course, begins with whether the city is correct that the lake is not among those navigable waters for which the state holds title to the underly- ing land … any limitations on the state’s ability to interfere with the public’s right to use the public trust waters are, simi- larly, limits on the city’s authority.” Thus the pivotal question was framed —did the city have the authority to put in place the disputed resolution and to successfully defy and repel any steps the state might take to strike it down, or does the state bear a legal obligation to crush that resolution, as a public trust violation? And of course that question cannot be answered, as long as the nav- igability status of the lakebed remains shrouded in mystery, because the hands of state authorities remain tied, in the absence of the requisite lakebed navi- gability clarification. The state and the city cannot block the plaintiffs access, those authorities must acquiesce and re- lent, opening a useful route to the lake through a public park, in order to make the lake once again readily and directly accessible to the public—but only if the land beneath the lake’s surface is held by the state as public trust land, which is contingent upon the title navigability status of the lake. “We conclude that the public’s interest in the navigable waterways that are held in trust by the state includes a right of ac- cess to the publicly-owned water from abutting public land … We also conclude that cities are subject to limitations on their authority to restrict the public’s right of access to publicly-owned water … continued from previous page T Featured Article The 1862 DLC plat of T2S R1E informs us that some of the riparian lots, which were originally platted by the GLO 10 years earlier, fronting upon Sucker Lake, were subsumed and rendered irrelevant by Donation Land Claims. But can this plat serve as definitive evidence that three years after the arrival of Oregon statehood, the lake was no larger than it was when it was meandered in 1852? The answer to that question could carry serious legal implications.