Kramer v. City of Lake Oswego

Oregon owns the lands underlying navigable waters of the state as a representative of the people and "the ownership is that of the people in their united sovereignty, while the waters remain public so that all persons may use the same for navigation and fishing," and the rights flowing from ownership of submersible lands includes a right of pass from the upland border of that land to the adjacent water. See generally Corvallis Sand & Gravel v. Land Board, 250 Or 319, 439 P2d 575 (1968), Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 137 P 766 (1914), & Smith Tug v. Columbia-Pac. Towing, 250 Or 612, 443 P2d 205 (1968).

Plaintiffs appealed the Court of Appeals affirmation of a summary judgment, which held that Plaintiffs were not entitled to a declaratory judgment.  Plaintiffs argued that the lake was owned by the State of Oregon and held in public trust, for public use, and that private waterfront-park and swim-park rules violated Article I, section 20, of the Oregon Constitution by "granting to a small class of citizens monopolistic privileges of access" not equally offered to all citizens. In response, Defendants argued that Plaintiffs are not entitled to declaratory relief for the claims they brought.  Oregon owns the lands underlying navigable waters of the state as a representative of the people and "the ownership is that of the people in their united sovereignty, while the waters remain public so that all persons may use the same for navigation and fishing," and the rights flowing from ownership of submersible lands includes a right of pass from the upland border of that land to the adjacent water. See generally Corvallis Sand & Gravel v. Land Board, 250 Or 319, 439 P2d 575 (1968), Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 137 P 766 (1914), & Smith Tug v. Columbia-Pac. Towing, 250 Or 612, 443 P2d 205 (1968).  The Court held that "the city lack[ed] authority to take action that the state would be precluded from taking under the public trust doctrine," but "genuine issues of material fact precluded determination that the waterfront resolution [was] a reasonable restriction on the public's right of access." Thus, the trial court erred in granting summary judgment on a claim for Plaintiff's declaratory judgment, but did not err in granting summary judgment on the remaining claims.  Reversed and remanded.