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It sure would be nice if KGW was notified and decided to do a story in front of that landowner's house on the river. Or better yet, in the river in front of his backyard. :hoboy: Thanks for doing all the research Scruffy. Do you think the other deeds have such language in them?
 

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First of all, please remember that I have been one of the strongest supporters of navigability issues, and I've made my contacts to the Gov and the DSL on numerous occasions. However, I wanted to address a few things.......

Originally posted by Scruffy Bearded Varmint:
1. The legal description of the property reads "...West 177.25 feet; thence South 38° 07' 47" East to the Trask River; Thence Northeasterly,..." The property owner claimed that his deed gave him title to the middle of the river. In other words, the upland property owner had people arrested for trespassing on property he did not own.
<font size="2" face="verdana,arial,helvetica">Actually, "to the river" is generally interpreted as to the center of the stream for a non-navigable stream. So, until a determination from the Land Board, the owner does have a pretty good position.


2. The deed contains and exclusion that reads; "(5) Rights of the public and governmental bodies in and to any portion of the premises herein described lying below high water mark of the Trask River, including any ownership rights which may be claimed by the State of Oregon below high water mark." That's right. The guys deed recognizes both the public's right to use the Trask River up to the high water mark and the states right to exercise a claim of ownership to the river bed and banks up to the high water mark.
[/QUOTE]

This piece really is interesting, because in it, the deed appears to convey to the public any and all access rights to below the high water mark....regardless of navigability issues!! Be interesting just to see a judge's legal opinion on this. I suspect the "intent" of the deed was to cover the original seller in case of a navigable determination, that way the purchaser couldn't come back on the seller and file a claim against him/her over the land from MHW to the centerline. I'll have to get a copy of the deed myself and see the whole document.

P.S. Once again, hats off to the Steelheaders. At any given time it seems they are helping one or more Oregonians defend themselves when wrongfully accused of trespass on one of Oregon's many navigable waterways. Right now. I understand they are also helping a guy with a case down on the Rogue River. Seems a duck hunter was arrested for anchoring his boat on the river bottom. As I understand it, because he had a gun at the time of the arrest, he was charged with a felony crime. If convicted he will loose his professional license and the ability to make a living as he currently does. [/QUOTE]

Firmly agree, way to go, NWS...however, there are places on the Rogue (and a few others) where the original patent did go to the center of the river, irregardless of navigability, and this has been upheld in court. This was a very small time frame (1890-ish??).

TR
 

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I live near the upper Nehalem river. My neighbor behind me on the river uses our common driveway to get to his property. So in my deed, an easement is described for my neighbor to cross my property. Then there is an additional easement spelled out for me, in my deed, through his property that goes to the middle of the Nehalem river. I guess it was for access to the river for pumping water as there is water line in place and there was a power pole there too. So the way it reads...even if the river moves I still have access to the middle of it. I know that this doesn't give me any water rights...But have been thinking about a setup for emergencies...like no power and a forest fire. I would use a gas-fired water pump so would be able to fight fire even with no electricity. Remember...I am on a well and at times in the late summer, we don't have much water reserve.
 

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Well come on fellow fishing fanatics.

Do you think this is the first time people have came within sight of this landowner? I could bet no!

If you or I had that land we'd get tired of the traffic. It is to bad that the dude went to this extreme and should've been aware of the property provisions.

I loved fishing the upper trask, but I had permission and was not afraid to ask. Nor did I ever abuse it :rolleyes and try to hook-up the neighborhood :grin:
 

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Do you think phone calls will make a differance?I dont I think the next time this happens some one needs to get an attorny and nail one of these guys to the wall,after all thats what there tring to do!! A law suit for a couple hundred thousand to just one land owner would probly be enough to make all these guys sit on the couch siviring like the scared dogs they are.I understand some of there complaints with trash and damage but I realy [as you know] hate to pay for what others due. If they have time to monitor there banks they should have the time to take pictures of pepole doing damage and littering,so they can put there blame where its needed and deserved.
 

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Norm,

The DA can sit on the case up to two years without taking action.

To The Rogue,

Navigability is a federal issue not a state issue. Even though the Oregon State Legislature created a complex and obfuscated set of rules to follow in declaring navigability, it does not matter. According to the Supreme Court of the United States (on numerous occaisions) it is not for the state to determine.

By the way, the DSL at the Legislatures request did a navigability study on the Trask. It was rejected by the 1983 legislature. The 1995 legislature went even further and recinded any previous studies pending an "official" navigability study. The Trask is on the list.

Some interesting quirks of history show up as a result. For example the Deschutes River Mangement Plan clearly states on page 10 that: "The State of Oregon through the Division of State Lands, calims ownership of the bed and banks (up to ordinary high water) of the river within the planning area (other than reservation lands). The claim was made based on a state wide navigability study done between 1973 and 1983. If you call the Division of State Lands and ask about it, they will now deny ownership.

Several state and federal agencies such as the Coast Gaurd, the Army Corp of Engineers, and State Parks and Recreation keep their own lists of navigable waterways. The Trask appears on several as do other rivers awaiting an official determination. But if you ask the DSL they will deny ownership, even though they have the documentation to prove the stream is navigable.

One more item. It does not matter if a deed states the upland property owner owns to the middle of the stream. The Oregon Supreme Court and the United States Supreme Court ruled (again on numerous occaisions) that while a property owner may hold deed to a stream bed (jus privatum), that does not negate the states responsibility to hold the stream in public trust (jus publicum). The publics prior claim to use the stream up to the line of ordinary high water for transportation, angling and commerce takes precedence over the private landowners secondary claim.

As to calling the DA, I do not believe this would be a good idea at this time. Instead, I think everyone needs to educate themselves regarding this issue and don't be afraid to talk to others you meet on the streams. The more the public knows about this issue, the better off we all are.
 

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You're right....more or less. If the state determines a river is navigable, then you're exactly right. HOWEVER....it the determination is that the river is NOT NAVIGABLE...then, yes, a deed that calls "to the river" would almost assuredly mean that the property does go to the center of the river.

And what do you do when a state rules against whatever your position may be? Federal court...but you can't go directly to federal court until the determination has been made, as I understand it.

I'm definitely on your side here, don't get me wrong...but the situation is not quite as cut-and-dried as it may seem. If that was the case, then the Montana access law wouldn't work, because the state has, apparently, negotiated away certain rights of the public on some rivers in exchange for making things easy.

TR
 

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SBV,is this the property that's posted just up river from 5th st. boat ramp? The sign says no anchoring.
 

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deed that calls "to the river" would almost assuredly mean that the property does go to the center of the river
<font size="2" face="verdana,arial,helvetica">I have a question here. It may just be semantics or it may have been court-defined. But why do you think that means "to the middle of the river"? I would think it meant to the bank of the river. If you own property on a street it is "to the street" That doesn't mean to the middle of the street. Why would it mean anything different just because it's a water body?

If you are giving somebody directions you would naturally bound it with obstacles. I don't understand how in this case the definition would be changed to "the middle of the obstacle".

Is there a legal definition of that statement?

I guess what I'm asking is, if they meant to the middle of the river, why doesn't it just say "to the middle of the river"?

[ 10-24-2003, 12:10 AM: Message edited by: STGRule ]
 

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Someone asked for an update on what happened on the Trask River Trespassing Arrest Case. I thought I already posted this but if not, here goes for those interested.

A couple of months back a land owner along the Trask River had three men arrested for trespassing. They were bank fishing on the river behind his house. They contacted the Association of Northwest Steelheaders for some advice. A member of ANWS went over to the Tillamook County Courthouse and looked up the property deed. This is what he discovered:

1. The legal description of the property reads "...West 177.25 feet; thence South 38° 07' 47" East to the Trask River; Thence Northeasterly,..." The property owner claimed that his deed gave him title to the middle of the river. In other words, the upland property owner had people arrested for trespassing on property he did not own.

2. The deed contains and exclusion that reads; "(5) Rights of the public and governmental bodies in and to any portion of the premises herein described lying below high water mark of the Trask River, including any ownership rights which may be claimed by the State of Oregon below high water mark." That's right. The guys deed recognizes both the public's right to use the Trask River up to the high water mark and the states right to exercise a claim of ownership to the river bed and banks up to the high water mark.

Hundreds if not thousands of Oregon Deeds along Oregon waterways have the same or similar excusatory language. The landowner was fully aware of his property boundaries and of the exclusions regarding the river, yet he still had the people arrested. This is what we are up against folks. The worst part about this case was that the arrest was made and that the DA was going to prosecute!

The person from ANWS contacted the Tillamook County DA and related these tidbits to him. The DA asked the ANWS person to have the accused call him. He did, and they did. The ANWS person again spoke to the DA and learned that the case had been postponed indefinitely. That means it is out there in legal limbo land.

Interesting thing happened. The DA does not have to take any heat from locals for dropping the trespass case. The victims remain under the cloud of a pending trespass case. And the landowner, well he probably still thinks he can have people arrested for fishing on "his river."

If I were one of them folks arrested and I had the money to do it, I would file a false arrest charge and sue the landowner for infringing on my rights." But then, I don't have the time or the money so I guess I would just drop it. That, unfortunately, is what most wrongfully arrested victims of out of control property owners do. Usually they just pay the fine and forget it.

Scruffy

P.S. Once again, hats off to the Steelheaders. At any given time it seems they are helping one or more Oregonians defend themselves when wrongfully accused of trespass on one of Oregon's many navigable waterways. Right now. I understand they are also helping a guy with a case down on the Rogue River. Seems a duck hunter was arrested for anchoring his boat on the river bottom. As I understand it, because he had a gun at the time of the arrest, he was charged with a felony crime. If convicted he will loose his professional license and the ability to make a living as he currently does.
 

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How about the DA's name and phone # ?

Answering phone calls from angry anglers all day may persuade them to do what's right and drop the charges.
 

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I'll say it once and I'll say it again. I have spoken to the head authority of the division of state lands on this issue because it comes up regularly here on the south coast. No matter what the deed says on the persons property, if he owns to the middle of the river or not, if there hasn't been a navagability study on the river then it remains unproven who owns the riverbank to the high water mark regarless if he pays the taxes for it or not. Those are his exact words. With that said, a ticket or lawsuit will never be punishable under this statute in the state of oregon.

Have fun with that one.

tc
 

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I wonder if that maybe the deeds written to the middle of the river are to protect the land owner from loss should the river change course?

Not really on the subject I guess...
 

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How did they get to the river? I don't have a problem with the high water line. However, if they set foot on his land to get there or to walk around obstructions to travel up or down the river then he has every right to treat them as trespassers :grin:
 
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