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Should Land Created by Accretion go to the State?

This is one of the questions that will be decided by the Oregon Supreme Court in its review of Sea River Properties v. Parks, 253 Or App 643 (2012).  Accretion is the creation of new coastal or riparian land through natural processes.  In Sea River, the plaintiff sought to quiet title in approximately 40 acres of ocean front property located in Nedonna Beach on the Oregon coast.  A substantial portion of the disputed land was formed by accretion caused by changes in the course of the Nehalem River prior to and as a result of the construction of a jetty in 1918.  Title to the property has been in dispute since the mid-1970s. Sea River claimed titled based upon a deed referencing the Nehalem River coupled with its interpretation of the law on accretion.  Defendant Loren Parks claimed title to the disputed property based on an 1888 deed from the State to one of his predecessors conveying title to the tidelands adjacent to his property coupled with the fact that the new land was formed on those tidelands. After a lengthy bench trial, the trial court found that Sea River had legal title to the disputed property.  However, the trial court quieted title in Mr. Parks favor based on his counterclaim for adverse possession.

The judgment was appealed with both parties assigning error to the trial court’s decision. The Court of Appeals accepted the trial court’s findings of facts, but disagreed with the legal conclusions. The Court of Appeals held that new land formed by accretion is owned by the same party who owns the property upon which accretion began.  As an example, the Court noted that all of the accreted land created by the formation of an island in a navigable river would be owned by the State even if it eventually reaches a shore owned by a private party. Based on this reasoning, the Court held that Mr. Parks was the record title holder of the disputed land because it was created by accretion on tidelands owned Mr. Parks.

The Court also held that Mr. Parks owned some of the disputed land based on the application of the doctrine of lateral accretion. The doctrine of lateral accretion holds that one riparian owner cannot extend its property laterally in front of other riparian owners simply because land began accreting laterally from the first owner’s land. Although the tidelands conveyed to Mr. Parks’ predecessor in 1888 had over time been divided from the remainder of his property by the movement of the Nehalem River, the Court found that Mr. Parks remained the owner of those tidelands under the doctrine of lateral accretion. 

The Court of Appeals ruling raises an interesting question regarding ownership of land in Oregon created by accretion.  All of the tidelands in the state of Oregon are owned by the State unless the State has conveyed it to a private party.  See ORS 273.900.  Based on the holding in Sea River, it would appear that, except in exceptional circumstances, all land formed by accretion in tidelands or navigable waterways are owned by the State.

The Sea River case is currently pending in the Oregon Supreme Court and argument was heard a few weeks ago. The questions to be decided include the following:

  • What is the basic law of accretion in Oregon, i.e., when new land forms by accretion, who becomes the owner of the accreted land?
  • What is the basic law of tidelands ownership in Oregon, i.e., how are the boundaries of tidelands established, and is there a temporal component to that determination?
  • Has Oregon adopted the doctrine of lateral accretion, and, if so, how does it affect the basic law of accretion in Oregon?

The answers to these questions may have broad implications for the owners of coastal and riparian properties in Oregon. In addition, it could substantially expand the State’s ownership of dry land created by accretion in tidelands and rivers.

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