I'm not involved in this project, but it has become an interesting and slow moving spectator sport for a lot of us in town. Here's the skinny -
Drake owned most of Section 32. In 1912 Drake conveyed the following to the Pinelyn Park Company:
(you can scroll down to the third image in this post to see a map of this description)
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The Vol. 24 Pg. 567 Flowage Easement cited above was a reservation from a 1911 conveyance and reads:
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In 1913 Pinelyn Park Co. subdivided the above 1913 deeded property as shown on this map:
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… and described on the plat’s affidavit:
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The river in this area is part of a pond created in 1911 by a power company dam.
If the dam is removed and the river “shrinks” back to a narrower channel, who owns the formerly submerged lands? The river has not been designated a navigable river, so the state does not have any interest in the bed of the river. As far as I can determine Bend Water, Light and Power Company did not get fee title to the pond, just the 1911 Vol. 24 Pg. 567 Flowage Easement.
This is one example of many early 1900s subdivisions along the pond.
To date, title companies have stated they can't determine the ownership of what will become formerly submerged lands if the dam is removed.
[sarcasm]Ask a Judge[/sarcasm] 😉
They are returning a river to it's "natural" state by taking out a dam here. Not only is it a big mess about ownership, but these unfortunate people had beautiful river front homes and now, no matter who owns it, they have marsh/swamp front homes. I would be pissed!
The yellow line is the old river bank and it is still draining lower.
> In 1913 Pinelyn Park Co. subdivided the above 1913 deeded property as shown on this map:
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> … and described on the plat’s affidavit:
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>
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> The river in this area is part of a pond created in 1911 by a power company dam.
>
> If the dam is removed and the river “shrinks” back to a narrower channel, who owns the formerly submerged lands? The river has not been designated a navigable river, so the state does not have any interest in the bed of the river. As far as I can determine Bend Water, Light and Power Company did not get fee title to the pond, just the 1911 Vol. 24 Pg. 567 Flowage Easement.
Well, at first impression (and naturally in ignorance of the decisions of the courts in your state that contains the truly awful Deschutes Brewing Company), I'd say that if the subdivider owned to the bank of the river submerged by the pond, as would appear from the affidavit, then the subdivider intended to subdivide all of his land down to the bank of that river.
This is shown both by the affidavit calling for the "bank of the Deschutes River" and by the plat itself showing the lots as bounded by the Deschutes River. So, were this in Texas (which thankfully it is not since that would mean that the Deschutes Brewery might be here as well), I'd say that the lot owners own to the bank of the river. The only question is how to extend the lot lines in a manner consistent with the plat and/or equity.
I would not assume automatically that if the dam is removed that the flowage easement is removed.
Absent the written abandonment of the easement by the holder, the removal of the dam would be a matter of fact for a court to determine the actual state of the abandonment.
Without the easement in place, the issue becomes the status under Oregon case law.
As it may be a PLSS issue regarding navigability (and we have that response already) it will come down to whether Oregon follows the strict PLSS case law rendered in Gavit v. Chambers and Coats or whether Oregon has taken another approach as some states have.
The point is, if you are a surveyor, you need to know how your state deals with riparian boundaries.
To me, Oregon statutes are pretty clear on the matter -
93.310 Rules for construing description of real property. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:
[...]
(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.
To be more specific to non-navigable streams, ORS 93.310(4) can then be read as
“When a… (non-navigable) stream … is the boundary, the rights of the grantor to the thread of the stream… (is) included in the conveyance, except where… the stream … is held under another title”.
Given the above, I think the Pinelyn Park Company received fee out to the thread of the river as did the lot owners once the land was platted. However, title companies are not going to make such a stretch. Like Scott said above, I imagine a judge will be the final say if the dam is removed.
[sarcasm]The very first step one would have to take is to subdivide the section to be sure the monument as shown on the plat supposedly occupying the NW Cor of the SE1/4NW1/4 of Sec 32 is exactly where it should be according to Chapter 3 of the BLM Manual.[/sarcasm]
Sorry - couldn't resist.