State v. Dietrich

“[T]he rules of accretion and avulsion are straightforward: ‘[I]f the change be gradual, the boundary of the upland will follow the water; if it be sudden, the boundary remains as before.’ State Land Board v. Sause et al, 217 Or 52, 80 (1959). “ORS 93.310(2) provides that ‘permanent and visible or ascertained boundaries or monuments’ prevail over conflicting ‘measurement[s], either of lines, angles or surfaces.’”

Thunderbird Hotel, LLC (“Thunderbird”) appealed an order quieting title to a strip of land that lies beneath the I-5 bridge at the north end of Hayden Island (“I-5 Right of Way”). Thunderbird raised seven assignments of error which were centered on the trial court’s consideration of the 1960 eminent domain judgment and the construction of the 1975 and 2004 deeds regarding the I-5 Right of Way. Thunderbird argued the avulsive fill moved the northern boundary in the 1960 judgment because the original deed was to the water and the avulsion event moved the boundary. “[T]he rules of accretion and avulsion are straightforward: ‘[I]f the change be gradual, the boundary of the upland will follow the water; if it be sudden, the boundary remains as before.’ State Land Board v. Sause et al, 217 Or 52, 80 (1959). “ORS 93.310(2) provides that ‘permanent and visible or ascertained boundaries or monuments’ prevail over conflicting ‘measurement[s], either of lines, angles or surfaces.’” The Court found the artificial fill was an avulsive event and so the boundary did not move. The Court reasoned that because the I-5 Right of Way existed at the time of conveyance, there was no ambiguity in the text. Therefore, the trial court did not err in ruling the State’s title was superior to that of Thunderbird. Affirmed.