No. 53 August 14, 2014 831

IN THE SUPREME COURT OF THE 

STATE OF OREGON

SEA RIVER PROPERTIES, LLC,

an Oregon limited liability company,

Petitioner on Review,

v.

Loren E. PARKS, 

an individual,

Respondent on Review.

Loren E. PARKS, 

an individual,

Third-Party Plaintiff,

v.

H. Robert RILEY 

and Geneva Ruth Riley,

both individually and as Trustees of the 

H. Robert Riley Trust and Geneva Ruth Riley Trust;

Donald Lee Riley and Lee Ann Riley, 

husband and wife;

David Robert Riley and Catherine Lou Riley, 

husband and wife,

Third-Party Defendants.

(CC 062011; CA A145896; SC S061094)

On review from the Court of Appeals.*

Argued and submitted September 20, 2013.

Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, argued 

the cause and filed the brief for petitioner on review.

G. Kevin Kiely, Cable Huston Benedict Haagensen & 

Lloyd LLP, Portland, argued the cause and filed the brief for 

respondent on review. With him on the brief were Laura J. 

Walker, Casey M. Nokes, and Gretchen S. Barnes.

______________

* Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 253 Or 

App 643, 291 P3d 1 (2013).
832 Sea River Properties, LLC v. Parks

Before Balmer, Chief Justice, and Kistler, Walters, 

Linder, Landau, and Baldwin, Justices.**

KISTLER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are reversed. The case is remanded to the 

circuit court for further proceedings.

Plaintiff filed action to quiet title to land that had accreted along the central Oregon coast adjacent to plaintiff and defendant’s land. Defendant counterclaimed, asserting that it took title on the same grounds that plaintiff alleged. 

The trial court determined that the land accreted to plaintiff’s property and 

ordinarily would belong to plaintiff except that defendant had acquired title to 

the land by adverse possession. The Court of Appeals affirmed, concluding that 

defendant took title to the land as a result of the law of accretion. Held: (1) in 

Oregon, land formed by accretion to upland belongs to the owner of the upland 

where the accretion began; (2) the doctrine of lateral accretion does not apply to 

these facts; and (3) defendant failed to establish by clear and convincing evidence 

actual, continuous, and exclusive use of the accreted land and therefore did not 

take title to it by adverse possession.

The decision of the Court of Appeals and the judgment of the circuit court 

are reversed. The case is remanded to the circuit court for further proceedings.

______________

** Brewer, J., did not participate in the consideration or decision of this case.
Cite as 355 Or 831 (2014) 833

KISTLER, J.

Plaintiff Sea River and defendant Parks own adjoining parcels of land on the central Oregon coast near Nedonna 

Beach just south of the Nehalem River. Between the 1920s 

and the 1990s, after the United States government built two 

jetties to contain the Nehalem River, the ocean and wind 

deposited sand and silt onto the upland, creating approximately 40 acres of land west of those lots and south of the 

Nehalem River’s southern jetty.1

 The primary issue in this 

case is who owns those 40 acres (the “disputed property”). 

Plaintiff filed this action to quiet title to the disputed property, arguing that it owned the property on the basis of its 

record title, through the law of accretion, or by adverse possession. Defendant counterclaimed, contending that those 

same legal theories led to the conclusion that he held title to 

the property.

After a 14-day bench trial, the trial court found 

that plaintiff’s predecessors in interest took title to the disputed property through the law of accretion. The trial court 

also ruled, however, that defendant later acquired title to 

the disputed property through adverse possession. The trial 

court accordingly entered judgment giving defendant title 

to the disputed property. Plaintiff appealed, challenging the 

trial court’s ruling on adverse possession. Defendant crossassigned error, challenging the trial court’s ruling on accretion. The Court of Appeals affirmed the judgment, concluding that defendant’s predecessors in interest had acquired 

title to the disputed property through the law of accretion. 

Sea River Properties, LLC v. Parks, 253 Or App 643, 297 

P3d 1 (2012). We allowed plaintiff’s petition for review and 

now reverse the decision of the Court of Appeals and the 

trial court’s judgment and remand for further proceedings 

consistent with this opinion.

I. FACTS AND PROCEDURE

This case arose as an equitable action to quiet title 

to real property. Plaintiff and defendant own adjoining lots. 

1 On appeal and review, the parties have referred to the accreted land as consisting of approximately 40 acres. There is evidence in the record that the area 

may be smaller. The exact amount of the area does not affect our resolution of the 

issues that the parties raise on review.
834 Sea River Properties, LLC v. Parks

Plaintiff owns Section 20, Lot 1, which lies directly south of 

the lot that defendant owns, Section 17, Lot 4. The disputed 

property lies to the north of plaintiff’s lot and to the west 

of defendant’s. After considering the evidence in this case, 

the trial court made extensive, detailed findings of fact. On 

appeal, the parties asked the Court of Appeals to review 

some of the trial court’s factual findings de novo. Id. at 645; 

see ORS 19.415(3) (giving the Court of Appeals discretion to 

review some equitable proceedings de novo). The Court of 

Appeals declined to do so and accepted the trial court’s findings regarding accretion. Sea River Properties, LLC, 253 Or 

App at 645. We also accept the trial court’s factual findings 

that are supported by the record and review its decision for 

errors of law. ORS 19.415(4).

In setting out the facts, we start by describing the 

geological history of the area, then explain how defendant 

and plaintiff came to own the property, and finally summarize the history of their legal dispute over it.

A. Geological Background

In the 1850s, the federal government surveyed 

coastal land in Oregon and platted the area by dividing 

it into sections. In this instance, each section was further 

divided into four lots, running north to south, from Lot 1 

to Lot 4. Section 17, Lot 4’s southern border is Section 20, 

Lot 1’s northern border. In 1858, after the lots were first 

platted, their western border was the Pacific Ocean. At that 

time, the mouth of the Nehalem River lay slightly north of 

Section 17, Lot 4’s northern border. Figure 1, set out below, 

depicts the location of the two lots and the Nehalem River 

in 1858.

Until the twentieth century, the Nehalem River 

continually alternated between two channels, a northern 

channel and a southern channel. In 1858, the river flowed 

through its northern channel. After 1858, over several 

decades, the river drifted, and by 1911, it had shifted into 

its southern channel. That gradual shift, as the trial court 

found, eroded significant portions of land along the coast, 

including almost all of Section 17, Lot 4. The trial court 

found that, by 1911, Section 17, Lot 4 had contracted into
Cite as 355 Or 831 (2014) 835

Figure 1: 1858. The Nehalem River 

in its northern channel.

a small, triangular piece of land (represented by the triangle in Figure 2) on the eastern side of the Nehalem River’s 

southern channel. The trial court characterized that land in 

1911 as “riverfront” property.2

2 Maps portraying Section 17, Lot 4 in 1911 show the Nehalem River flowing 

southward, with a small strip of tidelands to the east and a wider swath of tidelands fronting the Pacific Ocean to the west. At low tide, a tidal bar to the west of 

the river sometimes emerged. At high tide, the ocean ordinarily covered it.
836 Sea River Properties, LLC v. Parks

Figure 2: 1911. The Nehalem River shifts to the south, 

eroding Section 17, Lot 4.

By 1911, the Army Corps of Engineers began building two jetties to stop the river’s drift and to keep it flowing 

in its northern channel, primarily to make the river safer 

for navigation. By 1926, the jetties were complete. The trial 

court found that, with the Nehalem River confined between 

the jetties to the north, the water in the southern channel 

“by some process undisclosed” in the record narrowed and 

dried up into a non-navigable stream, McMillan Creek, 

which flowed north to the Nehalem River. By that point, 

what little remained of Section 17, Lot 4 had as its western 

border the centerline of McMillan Creek (the former southern channel of the Nehalem).

From the 1920s until the 1990s, the ocean and 

winds deposited sediment along the upland of Section 20, 

Lot 1 until, gradually, new land began forming south of 

the Nehalem River’s southern jetty. The new land grew by 

accretion north and northeast and gradually filled in portions that the Nehalem River had eroded before the 1920s. 
Cite as 355 Or 831 (2014) 837

The new land, which we and the parties refer to as the 

disputed property, “was non-contiguous with the property 

transferred to [defendant] by his predecessors in interest.” 

The bed of McMillan Creek separates the disputed property 

from Section 17, Lot 4.3

 The disputed property (outlined by 

dashes in Figure 3) lies west of the center line of McMillan 

Creek (the Nehalem River’s former southern channel), north 

of the section line, and just south of sandy beach along the 

Nehalem River’s southern jetty.

Figure 3: 2006. The configuration of the land 

at the time of trial.

B. Chain of Title

In 1883, William Hiatt purchased from the state 

“all the tide lands lying west of and fronting and abutting 

upon Lots 2, 3, and 4 of Section 17.” The trial court found 

that, in 1883, the only tidelands adjacent to and touching 

Section 17, Lot 4 were river tidelands on the eastern side 

of the Nehalem River’s southern channel, where the river 

then flowed. In 1900, the State Land Board foreclosed on 

3 It appears from the record that the bed of McMillan Creek may be dry for 

parts of the year. 
838 Sea River Properties, LLC v. Parks

mortgages secured by, among other property, Section 17, 

Lot 4. In 1908, the State Land Board patented to Wright 

Blodgett Company (Wright) a plot of land that included 

Section 17, Lot 4.4

 In 1924, Wright conveyed Section 17, Lot 

4 by warranty deed to one of defendant’s predecessors in 

interest.5

 Wright also conveyed its “interest of, in and to tide 

lands fronting on” Lot 4 of Section 17 by quitclaim deed to 

the same predecessor in interest. In 1989, eight years after 

defendant purchased a vacation home in Nedonna Beach 

near the disputed property, defendant purchased Section 17, 

Lot 4, including “[a]ny and all tidelands fronting and abutting Government Lot 4, in Section 17.”

Plaintiff’s title traces back to Riley, who had purchased a 10-acre parcel that included Lots 1 and 2 of Section 

20 in 1944 and subdivided the land for sale to several different purchasers. In 1996, Riley executed a deed conveying 

“all the natural accretions” to Lots 1 and 2 in Section 20 to a 

trust. In 1998, Riley sold those same accretions to a limited 

liability company, which later pledged the property as collateral for a loan on which the company defaulted. In 2005, 

after a foreclosure sale, plaintiff purchased by quitclaim 

deed “all the natural accretions” to Section 20, Lots 1 and 2.

C. Procedural Background

In 2006, plaintiff filed an action to quiet title to the 

disputed property, arguing that it owned the disputed property on the basis of its record title, accretion, or adverse possession. Defendant counterclaimed, asserting ownership on 

the same grounds.

Both the trial court and the Court of Appeals concluded that, because neither party’s deed could be conclusively interpreted to include the disputed property, the law 

of accretion would determine the parties’ property rights 

4 Alderman owned Section 17, Lot 4 when the state foreclosed on it. Although 

Hiatt may have transferred title to the tidelands fronting and abutting Lot 4 to 

Alderman, the state did not expressly foreclose on the tidelands separately from 

Lot 4. Similarly, the patent deed that the state later issued to Wright in 1908 

included Section 17, Lot 4, but it did not refer to the tidelands.

5 The trial court noted that the record does not contain a deed from Wright 

to one of defendant’s predecessors in interest for Section 17, Lot 4. The parties do 

not dispute, however, that such a deed existed. 
Cite as 355 Or 831 (2014) 839

to it. In deciding the question of accretion, the trial court 

heard extensive expert testimony about the geological development of the area since 1858 and made detailed factual 

findings. It found that, when the Nehalem River shifted into 

its southern channel in the 1880s, it eroded large portions of 

upland along the coast, including most of Section 17, Lot 4. 

It further found that the process of erosion had permanently 

changed Section 17, Lot 4’s western border: Where in the 

1850s Section 17, Lot 4 had fronted the Pacific Ocean, by 1911 

it fronted the Nehalem River and, as the southern channel 

of the Nehalem dried up and became a non-navigable creek, 

the western border of Section 17, Lot 4 went to the centerline of that creek. Finally, the trial court found that, after 

the federal government constructed the Nehalem River jetties, the disputed property formed by accretion, starting on 

Section 20, Lot 1 and growing northerly and northeasterly 

up the coastline toward the southern jetty.

The trial court ruled that, under Oregon law, 

accreted land belongs to the owner of the upland to which 

the accreted land first attaches. See State Land Board v. 

Sause, 217 Or 52, 82, 342 P2d 803 (1959) (stating that principle). It also identified a potential exception to that rule—

the doctrine of lateral accretion. Under that doctrine, a trial 

court may divide accreted land when land grows laterally 

beyond a fixed property line such that it blocks one littoral 

or riparian landowner’s access to water. See, e.g., Bonnett v. 

Division of State Lands, 151 Or App 143, 152-53, 949 P2d 

735 (1997) (discussing that doctrine).

Applying those rules to the facts, the trial court concluded that, because the accretion began along the upland of 

Section 20, Lot 1, the owners of that lot (plaintiff’s predecessors in interest) took title to the disputed land. It also 

concluded that, because Section 17, Lot 4 did not border on 

the Pacific Ocean when the accretion began, the doctrine of 

lateral accretion did not apply to give defendant access to 

the Pacific. Ordinarily, those findings would have led to the 

conclusion that plaintiff’s predecessors in interest acquired 

title to the disputed property as a result of accretion and 

that plaintiff, as a result of purchasing the natural accretions to Section 20, Lot 1, held title to the disputed property. 

The trial court, however, also found that defendant satisfied 
840 Sea River Properties, LLC v. Parks

the elements of adverse possession and thus acquired title to 

the disputed property that way. The trial court accordingly 

entered a judgment giving defendant title to the disputed 

property.

The Court of Appeals affirmed the trial court’s 

judgment but on a different ground—namely, that defendant acquired title to the disputed property as a result of 

accretion. In reaching that conclusion, the Court of Appeals 

accepted the trial court’s factual findings. However, it disagreed with the “conclusions that the [trial] court drew 

from those facts.” Sea River Properties, LLC, 253 Or App at 

651. The Court of Appeals explained initially that the law 

of accretion in Oregon is that “ownership of the land whereupon that new land was formed is the controlling consideration” in determining property rights to accreted land. Id. at 

653. It found that either the state or defendant’s predecessors in interest to Section 17, Lot 4 owned the tidelands over 

which the disputed property formed. See id. The Court of 

Appeals held that, because plaintiff’s predecessors in interest did not own the tidelands on which the disputed land 

formed, the trial court erred in concluding that plaintiff’s 

predecessors in interest took title to that land as a result of 

accretion. Id.

The Court of Appeals also found that “[t]he state 

had * ** conveyed th[e] tidelands to [defendant’s] predecessor” before the Nehalem eroded parts of Section 17, Lot 4 in 

1911. Id. at 653. The court explained that it was “aware of no 

legal principle supporting the proposition that defendant’s 

predecessors’ ownership of those tidelands was lost merely 

because the river periodically came to divide them from the 

rest of Lot 4.” Id. The court concluded that, because defendant’s predecessors in interest retained the tidelands west 

of the Nehalem, the doctrine of lateral accretion gave them 

title to all accreted land lying above the southern boundary of Section 17, Lot 4 and west of that lot. Id. at 654 and 

n 4. Having held that defendant was entitled to the disputed 

property under the doctrine of lateral accretion, the Court of 

Appeals did not reach defendant’s adverse possession claim.

We allowed plaintiff’s petition for review to consider 

the principles that apply when land accretes on tideland and 
Cite as 355 Or 831 (2014) 841

also to consider the doctrine of lateral accretion, which this 

court has not previously recognized.

II. ACCRETION AND LATERAL ACCRETION

On review, the parties dispute primarily two issues 

regarding accretion. The first issue is whether, under Oregon 

law, accreted land belongs to the owner of the upland (plaintiff) to which the accreted land attached or whether it belongs 

to the owner of the tidelands over which the accreted land 

formed (arguably defendant).6

 The second issue is whether, 

even if the accreted land ordinarily would belong to plaintiff, the doctrine of lateral accretion requires that defendant 

get title to part of the accreted land to give him access to the 

Pacific Ocean.

We first explain the law of accretion in Oregon and 

how it applies to this case. We then consider defendant’s 

argument that an equitable exception to the law of accretion 

(the doctrine of lateral accretion) applies in these circumstances.

A. The Law of Accretion

Accretion is a geological process by which new land 

forms when sand, silt, or soil is gradually and imperceptibly 

deposited on the edge of existing land.7

 Near tidal waters, 

existing land consists primarily of upland and tidelands. 

Upland is simply “land” in the ordinary sense of the word, 

lying beyond the farthest point that tidal water ordinarily 

reaches. See Smith Tug v. Columbia-Pac. Towing Corp., 250 

Or 612, 614, 443 P2d 205 (1968) (defining upland). It may 

front an ocean or lake (in which case, the land is described 

as “littoral”) or a river or stream (“riparian”). Darling v. 

Christensen, 166 Or 17, 35, 109 P2d 585 (1941) (so defin6 We say “arguably” because the parties disagree whether defendant owned 

the tidelands west of the Nehalem over which the accreted land formed.

7 The conventional understanding of accretion is that it consists of two mechanisms, alluvion and reliction. Alluvion is a process by which sediment (also 

called alluvion) is gradually deposited onto the edge of upland, whereas reliction 

is a process by which land that was once submerged is uncovered by a gradual 

shift in the location of water. The legal principles controlling property rights to 

accreted land apply equally to both types of accretion. See Hanson v. Thornton, 

91 Or 585, 590, 179 P 494 (1919); 1 Water and Water Rights § 6.03(b)(2) (Robert 

E. Beck & Amy K. Kelley, eds, 3d ed 2009).
842 Sea River Properties, LLC v. Parks

ing those terms); Black’s Law Dictionary 1018, 1441 (9th ed 

2009). Tideland is submersible land “usually or ordinarily 

covered and uncovered every 24 hours by the action of the 

tides.” Sause, 217 Or at 67. It lies between the line of ordinary high water (high waterline) and the line of ordinary 

low water (low waterline) of a tidal body of water. See ORS 

274.005(8) (defining submersible land).8

In a typical case of accretion near tidal water, winds 

and tides gradually and imperceptibly deposit sand or other 

sediments onto the edge of upland contiguous to the shore.9

Over decades, the deposits build up and combine into new 

land, pushing the boundary of the upland outward to the 

water. Because the upland portion of the area grows outward, and conversely, the high waterline moves seaward, 

the process of accretion necessarily pushes the boundaries 

of tidelands seaward as well. To put the point even more 

simply: Tidelands move. When new land accretes to existing 

upland, the high and low waterlines shift, and the tideland 

next to the upland moves seaward. Conversely, when land 

gradually erodes because a tidal water body or watercourse 

has shifted position, the upland recedes and the tidelands 

shift accordingly. See generally Land Bd. v. Corvallis Sand 

& Gravel, 283 Or 147, 161-62, 582 P2d 1352 (1978) (explaining that upland boundaries move with the high waterline).

Since antiquity, the rule of accretion has been that 

gradual and imperceptible additions of new land to existing upland become the property of the upland owner. See, 

e.g., William Blackstone, 2 Commentaries on the Laws of 

England 262 (1765) (citing to Justinian’s Institutes).10 Our 

8 The line of ordinary high water is “the line on the bank or shore to which 

the high water ordinarily rises annually in season.” ORS 274.005(3). The line of 

ordinary low water is “the line on the bank or shore to which the low water ordinarily recedes annually in season.” ORS 274.005(4).

9 The process of sudden and perceptible shifts in water bodies and water 

courses causing changes to land is called avulsion. Generally, avulsion does 

not change property rights. See Sause, 217 Or at 80; 1 Water and Water Rights

§ 6.03(b)(2).

10 For a history of the doctrine of accretion, see Joseph L. Sax, The Accretion/

Avulsion Puzzle: Its Past Revealed, Its Future Proposed, 23 Tul Envtl LJ 305, 313 

(2010). Sax explains that the origins of the American understanding of accretion 

stem from Blackstone’s account, which itself is based on the Abbot of Ramsey’s 

case of 1369.
Cite as 355 Or 831 (2014) 843

case law has frequently recognized and adhered to that 

principle. Corvallis Sand & Gravel, 283 Or at 161; Purvine v. 

Hathaway, 238 Or 60, 64-64, 393 P2d 181 (1964); Sause, 217 

Or at 82; Hoff v. Peninsula Drainage Dist., 172 Or 630, 638-

39, 143 P2d 471 (1943); State v. Imlah, 135 Or 66, 74, 294 P 

1046 (1931); accord Hughes v. Washington, 389 US 290, 293, 

88 S Ct 438, 19 L Ed 2d 530 (1967).

In Imlah, for instance, the state sought to quiet 

title to accreted land in the Willamette River. Imlah, 135 

Or at 67. The state claimed that an island had arisen in 

the middle of the river, the bed of which it owned, and that 

the disputed land had attached initially to the island and 

grown gradually towards the defendants’ land on the western shore. Id. at 70. It followed, the state reasoned, that it 

owned the land that accreted between its island and defendants’ land on the western shore. This court accepted the 

legal premise underlying the state’s claim. It explained that 

“where an island arises in a stream, the title to the bed of 

which is in the state, [the island and any accreted land that 

attaches initially to the island] does not belong to the owner 

of either shore.” Id. The court, however, explained that the 

state’s premise did not match the trial court’s factual findings, which were “that the accretions grew from the shore of 

the mainland and not from the island.” Id. at 71. Because the 

accretions had attached initially to the defendants’ property 

on the western shore and had grown outward into the river 

(and had not started on the island and grown toward the 

shore, as the state had argued), the accreted land belonged 

to the defendants. Id. at 74.

Another way of explaining the law of accretion is 

that, for littoral or riparian land, when the high waterline 

changes location because of accretion (moving the upland 

seaward), the property boundary moves with the water. See 

Corvallis Sand & Gravel, 283 Or at 161-62. Similarly, after 

erosion, when a waterway gradually changes positions with 

the effect of covering land and moving the upland edge landward, the property boundary also moves. See id. A riparian 

or littoral owner takes title to land that forms by accretion 

and loses title to land destroyed by erosion. See Sause, 217 

Or at 82.
844 Sea River Properties, LLC v. Parks

The policies underlying the rule of accretion stem 

primarily from two rationales. The first rationale is that 

accretion, because it occurs gradually and imperceptibly 

over long periods of time, is a small concern for most property owners. Most property owners barely notice such insignificant, slow changes, and it is more efficient to grant title 

to the contiguous landowner, who likely has the greatest 

interest in making the gradual additions useful, than to 

anyone else. See Sause, 217 Or at 79 (quoting Blackstone 

explaining that “in [accretion] cases the law is held to be, 

that if [the increase to land] be by little and little, by small 

and imperceptible degrees, it shall go to the owner of the 

land adjoining. For de minimis non curat lex * **”). A second 

rationale is that riparian or littoral owners have a property 

interest in accessing the water that their land borders. See 

Imlah, 135 Or at 74. In most cases, when accretions extend 

from upland directly in front of riparian or littoral property, 

preserving access to that water favors giving the accreted 

land to the upland owner.

As our case law has established, the rule of accretion in Oregon (as well as elsewhere) is that accreted land 

belongs to the upland owner where the accretion began. If a 

party establishes that the accreted land first attached to his 

or her property, that party ordinarily takes title to it. In this 

case, the trial court heard extensive testimony and made 

detailed factual findings about the formation of the disputed 

land. Ultimately, it accepted plaintiff’s expert’s opinion that 

“the accreted property attached to Lot 1 in Section 20 and 

grew north and east” until it reached its current location 

west of Section 17, Lot 4 and south of the southern jetty. 

There is evidence to support those findings, and we accept 

them. Given those findings and the law of accretion, we hold 

that the trial court correctly concluded that, because the 

disputed property initially attached to Section 20, Lot 1 and 

grew northerly and northeasterly from that point, plaintiff’s 

predecessors in interest took title to that property under the 

law of accretion.

Defendant’s contrary argument starts from the 

premise that his predecessors in interest acquired title to 

the tidelands west of the Nehalem River in 1883 and that the
Cite as 355 Or 831 (2014) 845

disputed property formed over those tidelands. Defendant 

argues that, because “the owner of submerged land is the 

owner of dry land that subsequently forms on it,” the trial 

court should have held that he has title to the disputed property. Neither the premise nor the legal principle on which 

defendant’s argument rests is well taken.

We begin with the premise of defendant’s argument. 

In 1883, the state granted William Hiatt all the tidelands 

“lying west of and fronting and abutting” Lots 2, 3 and 4 in 

Section 17. Plaintiff does not dispute that that grant gave 

Hiatt (and through Hiatt, defendant) title to the tidelands 

adjacent to Section 17, Lot 4.

11 Defendant argues, however, 

that the state’s deed to Hiatt also gave Hiatt title to the tidelands that lay on the other side of the Nehalem, which at 

the time of Hiatt’s deed was a navigable river up to 600 feet 

wide and 26 feet deep. Defendant bases his argument on two 

phrases in the 1883 deed to Hiatt—“fronting and abutting” 

and “lying west of.”

In interpreting a deed, a court must “ascertain 

and give effect to the intentions of the parties, as evidenced 

by the language of the instrument and the circumstances 

attending its execution.” Wirostek v. Johnson, 266 Or 72, 75, 

511 P2d 373 (1973). We start with the language of the 1883 

deed. Ordinarily, a grant of tidelands that “front” a particular piece of property conveys title to the tidelands “in front of 

the lo[t] mentioned” and extends “to [the] low-water mark, 

wherever the same might be then or afterward.” Fellman 

v. Tidewater Mill Co., 78 Or 1, 7, 152 P 268 (1915). It does 

not convey title to the tidelands that lie on the other side of 

the river (or ocean). Were there any doubt about the matter, 

the word “abutting” removes it. A grant of tidelands “fronting and abutting” Lot 4 gave Hiatt only those tidelands that 

bordered on or were contiguous to Lot 4. See Websters’ Int’l 

11 The record does not disclose a link between the title to the tidelands that 

the state deeded Hiatt in 1883 and Wright, one of defendant’s predecessors in 

interest. It may be that, in foreclosing on Section 17, Lot 4 and later deeding 

that lot to Wright, the state inadvertently omitted a reference to the tidelands. 

Whatever the reason for the omission, we question whether defendant’s title to 

the tidelands traces to the 1883 deed to Hiatt. It may trace only to the 1924 quitclaim deed that Wright gave one of defendant’s predecessors in interest. Plaintiff, 

however, does not press the point, and we assume for the purposes of this case 

that defendant can base his claim to the tidelands on the 1883 deed to Hiatt. 
846 Sea River Properties, LLC v. Parks

Dictionary 9 (1907) (defining abut as “to border” or “to be 

contiguous”).12

Defendant also relies on the first part of the phrase 

in the 1883 deed to Hiatt, “all the tide lands lying west of” 

Lot 4. Defendant argues that we should give all the words 

in the deed effect and that, if the phrase “fronting and abutting” refers only to the tidelands that are adjacent to Lot 4, 

then “lying west of” Lot 4 must convey the tidelands on the 

other side (the western side) of the Nehalem. Otherwise, the 

phrase “lying west of” would be superfluous.

We note, as an initial matter, that the deed to Hiatt 

conveys the tidelands “lying west of” Lot 4. It does not convey the tidelands “lying west of” the Nehalem. In our view, 

the more natural reading of the entire phrase is the one that 

the trial court gave it—the phrase “all the tidelands lying 

west of and fronting and abutting” Lot 4 identifies three 

restrictions on the tidelands granted to Hiatt; that is, the 

tidelands granted to Hiatt lie west of Lot 4; they front that 

lot; and they abut it. Put differently, the phrase “fronting 

and abutting” defines which tidelands to the west of Lot 4 

Hiatt took.

Although the trial court’s reading of the 1883 deed 

is the more natural one, its reading does make the phrase 

“lying west of” superfluous, as defendant reasons. Because 

some ambiguity inheres in the text, we accordingly consider 

the circumstances surrounding the execution of the 1883 

deed. See Wirostek, 266 Or at 75 (noting that consideration). 

As defendant notes, the state granted the 1883 deed to Hiatt 

12 Defendant argues that Fellman is consistent with his claim that a grant 

of tidelands “fronting and abutting” his property conveyed not only the tidelands 

adjacent to his property but also the tidelands on the other side of the river. 

Defendant misperceives both the issue in Fellman and what that case held. The 

defendant in Fellman argued that a grant of tidelands fronting or abutting a 

particular property gave the grantee only the “metes and bounds described in 

the survey of the tide-lands as they then were” and that tidelands granted in 

that way did not move as the upland moved. 78 Or at 6. The court rejected that 

argument and held that “[t]he rule is that the purchaser of tide-land takes to the 

low-water mark, that afterward he is entitled to follow that line to the utmost of 

its recession, and that he acquires title to the accretions which gradually form 

upon his original grant.” Id. at 7. Fellman neither held nor suggested that a grant 

of tidelands fronting and abutting property on one side of a river grants tidelands 

on the other side of the river.
Cite as 355 Or 831 (2014) 847

pursuant to the 1872 Tide Lands Act. See Or Laws 1872,

p 129, as amended by Or Laws 1874, p 76. A stated purpose 

of that act was to encourage the owners of “soil abutting 

upon the coast” and tidal rivers to build structures to prevent the “washing away [of] the shores and [the] shoaling 

[of] such bays, harbors, and inlets.” Or Laws 1872, p 130 

(reciting one purpose of the act). The act gave the owners 

of “any land abutting or fronting upon or bounded by” tidal 

waters the right to purchase from the state the tidelands 

“in front of” their land. Id. § 1. With one exception, the act 

required an applicant seeking to purchase tidelands to provide proof that he or she held “title to land which abuts or 

fronts upon or is bounded by such tide lands” before the state 

could sell those tidelands to the applicant. Id. § 3.13

Viewed against that backdrop, the meaning of the 

state’s 1883 deed to Hiatt becomes clear. The 1872 act authorized the state to sell tidelands to persons whose land “abuts 

or fronts upon or is bounded by” those tidelands. That authorization confirms the natural interpretation of the language 

in the 1883 deed to Hiatt: The tidelands that the state conveyed to Hiatt were the tidelands that abutted or fronted and 

bounded Lot 4. Those were the tidelands on the eastern side 

of the southern channel of the Nehalem. Hiatt (and Hiatt’s 

successors in interest) did not take title to the tidelands on 

the other side of the river. As the trial court found, when 

the Nehalem later shifted to its northern channel and the 

southern channel became a non-navigable creek, the title to 

the tidelands that defendant and his predecessors obtained 

from Hiatt stopped at the thread or center of that creek. See 

Kingsley v. Jacobs, 174 Or 514, 523, 149 P2d 950 (1944).14

Defendant’s title does not extend any farther west.

13 Section (5) of the 1872 act stated the exception. It provided that, if the 

adjacent landowner had not applied to purchase the tidelands within a year after 

the passage of that act, then the tidelands could be purchased by other Oregon 

residents. Two years later, the legislature amended section (5) to provide that, if 

anyone other than the owner of the adjacent land sought to purchase tidelands, 

notice must be given to the landowner adjacent to the tidelands and that, if the 

adjacent landowner applied to purchase the tidelands, the adjacent landowner 

would be given preference. Or Laws 1874, pp 77-78.

14 When a party owns the tidelands contiguous to a navigable tidal river, that 

party owns to the ordinary low waterline. If the river becomes non-navigable, 

that party owns to the center or thread of the non-navigable stream. See Kingsley, 

174 Or at 523.
848 Sea River Properties, LLC v. Parks

It follows that the premise of defendant’s claim to 

the disputed property fails. If defendant or his predecessors in interest did not hold title to the tidelands west of 

the Nehalem, then we need not decide the correctness of the 

legal proposition that defendant advances—that the owner 

of tidelands on which dry land forms owns that land—to 

decide defendant’s claim to the disputed property. Plaintiff, 

however, also asserts that it owns the disputed property as 

a result of accretion, and the Court of Appeals accepted the 

legal proposition that defendant advances here in concluding 

that plaintiff did not acquire title to the disputed property. 

To determine whether the trial court correctly ruled otherwise, we consider briefly the merits of the legal argument 

that defendant advances.

Defendant cites a United States Supreme Court 

decision and an Oregon Court of Appeals decision to support the proposition that “the owner of submerged land is 

the owner of dry land that subsequently forms on it.” The 

legal principle on which defendant relies is correct insofar 

as it applies to islands, sand bars, and other dry lands that 

emerge from water unconnected to other dry land. But neither case on which defendant relies goes further than that. 

In the first case, the United States Supreme Court recognized that dry land (an island) that formed in the middle of 

a river unconnected to the shore belonged to the owner of 

the submerged land on which the island formed. St. Louis 

v. Rutz, 138 US 226, 245, 11 S Ct 337, 34 L Ed 941 (1891) 

(applying Illinois law). The Court also recognized that 

accreted land that attached to the island belonged to the 

owner of the island. Id. at 247. The Court neither held nor 

suggested that land that attaches initially to upland and 

forms over tideland belongs to the owner of the tideland. 

The rule that defendant asks us to draw from Rutz is contrary to well-established principles of accretion; nothing 

suggests that the Court departed from those principles in 

Rutz.

The second case is to the same effect. In Bonnett, a 

spit of land formed from a northern lot called “Northpoint” 

and grew southward down the Siuslaw River’s main channel
Cite as 355 Or 831 (2014) 849

in front of plaintiff’s lot.15 151 Or App at 147-79. Starting 

from the spit, land accreted and grew east toward plaintiff’s lot, eventually attaching to it. Id. The issue in Bonnett 

was whether the plaintiff owned the newly formed land that 

attached to his lot. The court came to two conclusions. First, 

it concluded that someone other than the plaintiff owned 

the tip of the spit where the accreted land formed. Id. at 

150. To support that determination, it reasoned that it was 

most sensible to treat the spit as if it were an island (a “spit 

island”) that arose on the tidelands across the channel from 

plaintiff’s lot. Id. at 153. Because “the owner in fee of the 

bed of a river, or other submerged land, is the owner of any 

bar, island or dry land which subsequently may be formed 

thereon,” see Rutz, 138 US at 247, the Court of Appeals 

assumed that the owner of the “spit island” ordinarily would 

be the State of Oregon. Bonnett, 151 Or App at 153. Second, 

it concluded that, because the accretions had started on that 

“spit island,” the accretions belonged to whoever owned the 

spit island, and that person was not the plaintiff. Id.

Put another way, the court in Bonnett applied two 

sets of principles. One set pertained to the ownership of 

islands, tidal bars, and elevations that form within tidelands, unattached initially to any land on the shore. The 

other set controlled ownership of land that forms by attaching to upland through accretion and grows outward, pushing the boundaries of the tideland with it. The principles 

relating to islands and sand bars were relevant because, to 

decide who takes title to land formed by accretions, the court 

first had to determine who owned the property (in Bonnett, 

the spit island) where the accretions began.

Neither set of principles helps defendant in this 

case. Rather, the first set makes clear that the principle 

that defendant invokes here—that the owner of submerged 

land is the owner of dry land that subsequently forms on 

it—is limited to islands, sand bars, and the like that arise 

in the midst of a body of water, unconnected initially to any 

15 Of course, neither the United States Supreme Court’s application of Illinois 

law in Rutz nor the Court of Appeals’ interpretation of Oregon law in Bonnett controls our resolution of Oregon law here. We consider those cases for their persuasive value only.
850 Sea River Properties, LLC v. Parks

dry land. The second set confirms that plaintiff owns the 

disputed property, which attached to Section 20, Lot 1 and 

grew north and east by accretion. Far from advancing defendant’s argument, the reasoning in Bonnett undercuts it.

Indeed, the principle on which defendant’s tidelandownership reasoning relies is at odds with the method that 

Oregon courts and other courts have used to determine 

property rights to accreted land. If defendant were correct, 

instead of identifying the upland to which the accreted land 

attached and who owns the upland, as in Imlah or Bonnett, 

courts would look simply to who owned the underlying tidelands, riverbed, or lake floor. In most instances, the state 

would own it, and, if defendant’s rule were correct, the 

state would take a large portion of accretions to littoral and 

riparian land. As our cases show, however, that is not the 

rule in Oregon. The controlling principle is that the upland 

owner takes accretions that began forming on the upland. 

Applying that principle to the trial court’s factual findings, 

we agree with the trial court that plaintiff acquired title to 

the disputed property as a result of accretion.

B. Lateral Accretion

Ordinarily, under the law of accretion, an upland 

owner takes accretions to his or her upland without qualification. Defendant, however, argues that an exception to 

the rule of accretion—called lateral accretion—provides a 

second ground for quieting title in his favor. That exception applies when land accretes to one owner’s property and 

then extends laterally in front of another owner’s property, 

blocking that owner’s access to water. In those instances, 

some courts have recognized that one of the purposes that 

underlies the doctrine of accretion—preserving access to 

water—is frustrated. See Lamprey v. Metcalf, 52 Minn 181, 

197, 53 NW 1139 (1893) (noting the “incalculable mischiefs 

that would follow if a riparian owner is liable to be cut off 

from access to the water, and another owner sandwiched in 

between him and it”). To avoid the inequity in allowing one 

landowner’s right to the accretions that attached to his land 

to cut off an adjoining landowner’s access to water, lateral 

accretion emerged as a doctrine that allows courts to apportion accreted land among multiple property owners.
Cite as 355 Or 831 (2014) 851

This court has never recognized the doctrine of lateral accretion. Two cases from other states, however, illustrate the doctrine. In the first case, the plaintiff owned a plot 

of land along the inlet of a lake. Rondesvedt v. Running, 19 

Wis 2d 614, 615, 121 NW2d 1 (1963). The water directly in 

front of the property was shallow—about a foot deep—and 

beyond that shallow water lay the deeper water of the lake. 

Id. Ordinarily, the plaintiff could walk through the shallow 

water to the deeper water. Id. at 620. Over a long period 

of time, however, land accreted to her neighbor’s property 

and created a small strip between the shallows directly in 

front of her property and the deeper water beyond it. Id. The 

result was that the plaintiff could no longer get to the deeper 

water in the lake without crossing the small strip of dry 

land now connected to her neighbor’s land. Id.

The plaintiff argued that, even though the strip had 

accreted to her neighbor’s land, she should take title to the 

part that obstructed her access to the lake. The Wisconsin 

Supreme Court agreed. Id. at 620. It reasoned:

“[The plaintiff’s lot] before the accretion occurred, had 

access to the open water of the lake by traversing the shallows in a direct line from any portion of her shore. She may 

still reach open water, but because of the process of accretion may not do so by water in a direct line from all parts 

of her shore.”

Id. The court accordingly apportioned the accreted land as 

the plaintiff had requested. Id. at 621.

Similarly, in the second case, a “highly unusual 

accretion” formed at the mouth of the Copalis River on the 

coast in central Washington. Hudson House, Inc. v. Rozman, 

82 Wash 2d 178, 179, 509 P2d 992 (1973). The accretion 

started from land south of a Washington State park and 

extended northerly up the coast into a long spit between the 

Copalis River to the east and the Pacific Ocean to the west, 

blocking the “ocean frontage” that the park previously had 

enjoyed. Id. at 178-81. As the court explained, the park “once 

had frontage directly on the Pacific Ocean, but the growth of 

the accretion has come between the park and the ocean.” Id.

at 181. To maintain the park’s access to the ocean, the court 

invoked the doctrine of lateral accretion and apportioned the 
852 Sea River Properties, LLC v. Parks

accreted land. Id. at 181, 184; see also Waring v. Stinchcomb, 

141 Md 569, 119 A 336 (1922) (apportioning land where 

accreted land simultaneously changed the course of the outlet channel of a river and blocked access to the Chesapeake 

Bay for an owner whose property, before the accretion, was 

contiguous to the Bay).

We draw two separate but related principles from 

those cases. First, the doctrine of lateral accretion applies 

when the accreted land that ordinarily would belong to 

one landowner cuts off an adjoining landowner’s access to 

a body of water. Second, in that circumstance, some courts 

divide the accreted land to permit the adjoining landowner 

to maintain access to that body of water.

In this case, even if we were to recognize the doctrine 

of lateral accretion, defendant’s invocation of the doctrine fails 

to satisfy those prerequisites. Specifically, defendant invokes 

the doctrine of lateral accretion to obtain access to the Pacific 

Ocean. However, as the trial court found, the formation of the 

disputed property, which began in the 1920s, did not cut off 

defendant’s land from the Pacific. Rather, defendant’s land 

no longer bordered on the Pacific, as a result of a shift in 

the Nehalem and the consequent erosion of Section 17, Lot 4,

some 40 years earlier. Indeed, when the disputed property 

began forming in the 1920s, Section 17, Lot 4 bordered only 

on the Nehalem, which access that lot still enjoys.16 Defendant 

fails to explain how the doctrine of lateral accretion permits 

a court to divide the disputed property so that he can obtain 

land fronting the Pacific Ocean when the formation of the 

disputed property was not the event that caused him to lose 

access to the Pacific in the first place. Even if we were to recognize the doctrine of lateral accretion, and we need not do 

so to resolve defendant’s lateral accretion claim, defendant 

provides no reason to think that equity permits him to parlay 

river frontage into ocean frontage.

Defendant advances two arguments in support of a 

different conclusion. He argues initially that not only did the 

16 Referring to a 2005 map, plaintiff states in its brief on merits “that the 

portion of Lot 4 with tidelands fronting and abutting it still has access to the 

Nehalem River over the river tidelands, as was the case in 1911.” In defendant’s 

brief on the merits, he does not take issue with that statement.
Cite as 355 Or 831 (2014) 853

Pacific Ocean form the western border of Section 17, Lot 4, in 

1858, but also that the Pacific remained the western border 

of Lot 4 when the process of accretion that formed the disputed property began in the 1920s.17 Defendant’s argument 

is at odds with the trial court’s factual findings regarding 

the Nehalem’s shift to its southern channel in the 1880s and 

the resulting erosion (and permanent loss) of much of Lot 4. 

The record supports the trial court’s findings, which effectively dispose of defendant’s first argument.

Defendant argues alternatively that, even if the 

Nehalem fronted his property in the 1920s when the accretion to Section 20, Lot 1 began, the same situation was true 

in both Hudson House and Bonnett. He reasons that, in 

those cases, a navigable river lay between the riparian owner’s property and the ocean. He argues that, because neither 

case “treated the navigable river channel as cutting off the 

riparian owner’s littoral rights to the Pacific,” we should not 

do so here.

We read those cases differently. In Hudson House, 

the court explained that the state park “once had frontage 

directly on the Pacific Ocean, but the growth of the accretion 

has come between the park and the ocean.” 82 Wash 2d at 

181. Put differently, the process of accretion was the cause 

of the park’s loss of ocean frontage, and the court accordingly exercised its equitable power to divide the accreted 

land between the park and the party that otherwise would 

have acquired title to all the accreted land. In this case, the 

trial court found that the process of accretion that gave rise 

to the disputed property was not the cause of Lot 4’s loss of 

ocean frontage. That loss occurred approximately 40 years 

before the disputed property began accreting to Section 20, 

Lot 1.

17 Defendant argues that erosion “is the result of the body of water that borders the property cutting into the former upland.” He contends that, because the 

Pacific Ocean bordered Section 17, Lot 4 in the 1850s, only the Pacific Ocean 

could have caused the erosion that changed the shape and size of Section 17, Lot 4 

by the early twentieth century. In support of that position, defendant cites Sause, 

217 Or at 69. We find no support there, or in any other case, for so limited an 

understanding of erosion. The trial court found that the Nehalem River caused 

the erosion in this case and that, because of the erosion, Section 17, Lot 4 ceased 

bordering the Pacific Ocean. We conclude that those findings do not arise from 

any error of law or misunderstanding of the principles underlying erosion.
854 Sea River Properties, LLC v. Parks

Similarly, in Bonnett, it was the growth of what the 

court referred to as a “spit island” and the accretion that 

attached to that island that deprived the plaintiff’s land 

of ocean access. See 151 Or App at 151. In that respect, 

Bonnett is like Hudson House and different from this case. 

Neither case provides a basis for saying that equity permits 

a court to divide accreted land to preserve access to a body 

of water when the process of accretion did not cause the loss 

of access. Because the factual predicates for apportioning 

the disputed property under the doctrine of lateral accretion 

are not present here, we need not recognize that doctrine to 

decide this case. It suffices to hold that the doctrine, as other 

courts have articulated it, does not apply to these facts.18

We reaffirm that, in Oregon, land formed by accretion 

to upland belongs to the owner of the upland where the accretion began. We also hold that the doctrine of lateral accretion, 

even if we were to recognize it, does not apply here. Accepting 

the trial court’s findings, we hold that plaintiff’s predecessors 

in interest, and plaintiff through them, took title to the disputed property as a result of the law of accretion.

III. ADVERSE POSSESSION

Because we agree with the trial court that plaintiff’s predecessors in interest acquired title to the accreted 

property, the remaining question is whether defendant later 

acquired title to that property by adverse possession. In 

considering that issue, we refer to the accreted property as 

“plaintiff’s property.” Doing so more accurately frames the 

question whether defendant’s use of plaintiff’s property is 

sufficient to establish that he adversely possessed it.

We begin by identifying the elements necessary 

to prove an adverse possession claim. At common law, to 

succeed on an adverse possession claim, a claimant had to 

prove, by clear and convincing evidence, six elements: “that 

the use of the property was actual, open, notorious, exclusive, continuous, and hostile for a 10-year period.” Hoffman v. 

Freeman Land and Timber, LLC., 329 Or 554, 559, 994 P2d

18 Similarly, we do not consider a subsidiary issue that the parties raise—

how, if the doctrine of lateral accretion applied, the disputed property should be 

apportioned between plaintiff and defendant. Defendant urges us to follow dicta 

in Bonnett; plaintiff argues that that dicta runs counter to the majority rule in 

states recognizing the doctrine of lateral accretion.
Cite as 355 Or 831 (2014) 855

106 (1999). In 1989, the Oregon legislature codified those six 

common-law elements and added one more—a person claiming adverse possession must have an honest belief throughout the 10-year period that he or she is the actual owner. See 

Or Laws 1989, ch 1069, § 1 (enacting ORS 105.620).19

In this case, plaintiff concedes that defendant’s use 

of the property was open, notorious, and hostile. Plaintiff 

argues, however, the evidence does not establish actual, continuous, and exclusive use for a 10-year period, nor does it 

establish, plaintiff contends, that defendant reasonably had 

an honest belief that he owned the property. In analyzing 

plaintiff’s argument, we accept the trial court’s findings of 

historical fact that are supported by the evidence.20 Whether 

those historical facts establish the elements of an adverse 

possession claim presents a legal issue. See Hoffman, 329 

Or at 564.21 Applying that standard of review, we set out the 

historical facts consistently with the trial court’s findings.

19 ORS 105.620 provides: 

“(1) A person may acquire fee simple title to real property by adverse possession only if:

“(a) The person and the predecessors in interest of the person have maintained actual, open, notorious, exclusive, hostile and continuous possession of the 

property for a period of 10 years;

“(b) At the time the person claiming by adverse possession or the person’s 

predecessors in interest, first entered into possession of the property, the person 

entering into possession had the honest belief that the person was the actual 

owner of the property and that belief:

“(A) By the person and the person’s predecessor in interest, continued 

throughout the vesting period;

“(B) Had an objective basis; and

“(C) Was reasonable under the particular circumstances; and

“(c) The person proves each of the elements set out in this section by clear 

and convincing evidence.”

20 Although we have discretion to review the trial court’s factual findings 

de novo, ORS 19.415(4), we decline to exercise that discretion and accept the trial 

court’s findings of historical fact that are supported by the evidence, as we did in 

considering the parties’ competing accretion claims. 

21 In Hoffman, this court “accept[ed] the facts as found by the Court of 

Appeals and limit[ed] our review to questions of law.” Id. at 556. This court then 

ruled that, contrary to the Court of Appeals conclusion on one of the elements, 

the historical facts were not “significant enough” to establish hostility. Id. at 

564. Rather, this court concluded that the historical facts “tip[ped] the scales” 

the other way on hostility. Id. Following Hoffman, we conclude that the question 

whether the historical facts are “significant enough” to establish actual, continuous, and exclusive use presents a legal issue for appellate courts. 
856 Sea River Properties, LLC v. Parks

In 1981, defendant bought a vacation house in 

Nedonna Beach. Defendant’s beach house is near Section 17,

Lot 4 and plaintiff’s property, but it is not located on either 

parcel of land. Defendant’s son testified that, after his father 

bought the beach house in 1981, the son and the son’s daughter “stayed there quite a bit.” They generally went there during 

“vacation times, the summertime, or weekends” because, at 

that time, the son’s daughter was in school. Initially, they 

visited the beach house “maybe five to eight times” a year. As 

his daughter got older, they visited the beach house “maybe 

two, three times a year,” and the son visited there “once or 

twice a year” on his own and then “off and on” up to the time 

of trial. When the son and his daughter visited the beach 

house, they would walk along the trails on plaintiff’s property or along the jetty, which lies outside plaintiff’s property. 

They also had “several wiener/marshmellow roasts against 

the jetty,” and defendant’s son did “some fishing off the jetty.”

Defendant testified that, after he bought the beach 

house in 1981, he visited the house “quite a bit. [He] would 

go down there weekends, especially in the summertime, and 

even in the wintertime.” His visits were “quite frequent the 

first few years [he] had the house.” During that time, he 

used plaintiff’s property “for recreation,” which consisted of 

“going along the trails” and “walk[ing] out to the jetty from 

time to time.”

Eight years later, in 1989, defendant purchased 

Section 17, Lot 4. The real estate agent represented and 

defendant understood (inaccurately as it turns out) that 

Section 17, Lot 4, included the property that we have determined belongs to plaintiff. After defendant purchased 

Section 17, Lot 4, he “continue[d] using [plaintiff’s property] for recreational purposes.” Defendant also gathered 

firewood on plaintiff’s property and once improved “one of 

the roads [on plaintiff’s property] a little bit” by “cut[ting] 

some branches that had grown into the roadway.” He cut the 

branches “so [he] could get [his] truck back there and get 

firewood.”

Defendant did not testify how frequently, after 1989,

he visited his beach house and walked over plaintiff’s property.
Cite as 355 Or 831 (2014) 857

In 2001 or 2002, defendant left Oregon “to move and establish a business in Las Vegas.”

When asked whether other people in the Nedonna 

Beach area also used plaintiff’s property for recreational 

purposes, defendant answered, “All the time.” He explained 

that “some of them have camped there, and some of them 

just walk the trails.” Defendant testified that he has “seen 

trailers parked on the property, and [he has] seen guys go 

back, especially [on holidays], and they camp back there 

someplace.” Defendant’s testimony on that point was consistent with the evidence from other witnesses, who testified to the public’s use of plaintiff’s property for recreational 

purposes.

After defendant bought Section 17, Lot 4 in 1989, 

the county tax records erroneously described plaintiff’s 

property as belonging to defendant. Defendant accordingly 

has paid taxes on the value of that land. Additionally, he 

granted two public bodies easements over plaintiff’s property (one in 1995 and the other in 2000). He also entered 

into an agreement in 1998 with a third public body permitting it to cut brush to preserve a sight line. We discuss those 

agreements in greater detail below.

After considering that evidence, the trial court 

found that defendant “has continuously claimed ownership 

of [plaintiff’s] property.” The court concluded:

“There is *** clear and convincing evidence that [defendant] made actual use of the property. Actual use is established if a claimant establishes a use of the land that would 

be made by an owner of the same type of land, taking into 

account the uses for which the land is suited. [Defendant] 

granted easements to parts of the property to third parties and granted other and third parties access to the property. He engaged in litigation to protect his interest in the 

property. He rejected [plaintiff’s predecessor in interest’s] 

claims of ownership and offers of compromise. He was 

shown as record owner of the property. He paid property 

taxes on the property.”

The trial court did not separately address each element—

actual, continuous, exclusive, hostile, open, and notorious 

use—necessary to establish adverse possession. Nor did 
858 Sea River Properties, LLC v. Parks

it identify a specific 10-year period in which it concluded 

that those aspects of defendant’s use coalesced. Rather, it 

appears to have concluded that defendant acquired title to 

plaintiff’s property by adverse possession based primarily 

on defendant’s claim of ownership, his payment of taxes, the 

two easements he granted to the public bodies, and the permission he gave another public body to cut brush to maintain a sight line.

On appeal and review, plaintiff has conceded that 

the evidence establishes that defendant’s use of its property 

was open, notorious, and hostile. Plaintiff argues, however, 

that defendant failed to establish actual, exclusive, and continuous use of the property for a 10-year period.22

We take the last point first. To acquire title by 

adverse possession, defendant had to prove by clear and 

convincing evidence that all the elements necessary to 

establish adverse possession existed for a single 10-year 

period. ORS 105.620(1)(a); Hoffman, 329 Or at 559. In this 

case, however, defendant has never identified one 10-year 

period in which those elements coalesced. Plaintiff, for its 

part, has argued that the 10-year period must begin sometime after defendant purchased Section 17, Lot 4 in 1989, 

and defendant has not explained on appeal or review why 

plaintiff’s argument is incorrect. 23 We accordingly consider 

only the roughly 21-year period from 1989 (when defendant 

purchased Section 17, Lot 4) to May 14, 2010 (when defendant first asserted a counterclaim for adverse possession). 

22 Plaintiff also argues that the evidence does not establish that defendant’s 

belief that he owned the property was reasonable. We need not resolve that issue 

because we conclude that the evidence does not establish actual, continuous, and 

exclusive use. 

23 In its opening brief in the Court of Appeals, plaintiff argued that “[defendant] cannot rely on Publishers [defendant’s immediate predecessor in interest] 

to complete his adverse possession claim.” Plaintiff reasoned that defendant could 

tack to a period of time during which Publishers owned Section 17, Lot 4 only 

if defendant established that Publishers’ use of plaintiff’s property during that 

period satisfied all the elements necessary to prove an adverse possession claim. 

Plaintiff argued that defendant had not done so. Defendant has not explained in 

the briefs that he filed on appeal and review why plaintiff is wrong on that point, 

although he recited that Publishers had leased land to the City of Rockaway 

Beach and had given a license to the city. At one point during oral argument, 

defendant’s attorney stated in passing that defendant should be able to tack to 

Publishers’ use, but he did not explain why Publishers’ use was sufficient for it to 

adversely possess against plaintiff’s predecessor in interest. 
Cite as 355 Or 831 (2014) 859

See Real Estate Co. v. Hendrix, 28 Or 485, 496, 42 P 514 

(1895) (considering whether the elements necessary to prove 

adverse possession had been established “for a period of 

more than ten years immediately preceding the commencement of this suit”).

Within that 21-year period, defendant still does not 

identify which 10-year period he believes establishes his 

adverse possession claim. The omission is problematic. As 

explained below, defendant identifies essentially three categories of use that, in his view, establish his actual, continuous, and exclusive use of plaintiff’s property. However, 

not all those uses have occurred continuously from 1989 

to 2010. Some did not start until the latter part of that 

21-year period. Other uses may have occurred with greater 

frequency in 1989 but have diminished as time passed. In 

determining whether any or all of those uses are sufficient 

to prove actual, continuous, and exclusive use, the question 

is whether a sufficient combination of those uses occurred 

within a single 10-year period. With that temporal focus in 

mind, we turn to defendant’s arguments.

As we understand defendant’s argument, he identifies essentially three categories of use: (1) paying taxes on 

plaintiff’s property since 1989; (2) using plaintiff’s property 

for recreational purposes; and (3) granting two easements 

and giving a third party access to plaintiff’s property. We 

begin with defendant’s payment of taxes.

Paying taxes to a county tax collector is not an 

actual use of land. Rather, it is an act that manifests a claim 

of ownership, as this court has recognized for more than 100 

years. In Real Estate Co., for example, the plaintiff’s immediate predecessor in interest had acquired title to a 140-acre 

tract of land, platted the land as the town of Cornelius, and 

then sold part of the land to the plaintiff in 1872. 28 Or 

at 490, 496. From 1872 until 1891, the plaintiff “appointed 

persons living at Cornelius to act as its agent [and] paid the 

taxes annually assessed on the property most of the time 

***.” Id. at 496. When it turned out that the plaintiff’s predecessors in interest had not acquired good title to the land, 

the plaintiff argued that it had acquired title to it by adverse 

possession. Id.
860 Sea River Properties, LLC v. Parks

This court held that the plaintiff had failed to 

establish sufficient actual occupancy or use of the land to 

prove adverse possession. As the court recognized, “[i]t must 

be admitted that the plaintiff claimed title to the locus in 

quo.” Id. at 497.24 The court explained, however, that “never 

having occupied any portion of the premises, [the plaintiff’s] 

claim of ownership, in the absence of occupancy, can never 

become the foundation of an adverse right.” Id. at 497. The 

court reasoned that to establish that it had occupied the 

land, the plaintiff would have show actual possession of the 

land. Id.

Since Real Estate Co., this court has viewed payment of taxes as “substantial evidence of claim of ownership,” while reaffirming that “payment of taxes alone” is not 

sufficient to prove actual possession or actual use of the land. 

Knecht v. Spake, 218 Or 601, 607-08, 612, 346 P2d 98 (1959). 

The court accordingly has required proof of actual, open, 

notorious, exclusive, continuous, and hostile use to establish 

an adverse possession claim. Id. at 609-10. Following Real 

Estate Co. and Knecht, we conclude that defendant’s payment of taxes on plaintiff’s property established a claim of 

ownership, but it does not establish defendant’s actual, continuous, or exclusive use. Defendant must establish that use 

some other way. See Real Estate Co., 28 Or at 497. We turn 

to the two remaining “uses” that defendant has identified.

Defendant argues that his family’s use of plaintiff’s property for recreational purposes after 1989 establishes actual, continuous, and exclusive use. As noted, 

defendant testified that his visits to his beach house were 

“quite frequent” for the first few years after he bought the 

beach house in 1981. The record, however, does not disclose 

how frequently or infrequently defendant visited the beach 

house or walked over plaintiff’s property after 1989, when 

he bought Section 17, Lot 4. Similarly, defendant’s son testified that he and his daughter visited the beach house five to 

eight times a year after his father bought the house in 1981. 

As the daughter grew older, however, their visits diminished 

24 The court did not specify which acts gave rise to the plaintiff’s claim of 

ownership. However, it had noted that the plaintiff had paid taxes on the land 

since 1872.
Cite as 355 Or 831 (2014) 861

to “maybe two, three times a year,” and the son visited the 

beach house once or twice a year on his own. On those occasions when defendant or his family would visit the beach 

house after 1989, they would walk on the trails over plaintiff’s property to the ocean or back to the jetty.

We assume that defendant and his family’s recreational use of plaintiff’s property after 1989 constituted 

“actual use.” We question whether their occasional use 

established “continuous” use for a 10-year period. We recognize that whether an adverse possessor uses land continuously will vary with the nature of the land. See Allison v. 

Shepherd, 285 Or 447, 452, 591 P2d 735 (1979) (“An adverse 

possessor need only establish an occupation or use of the 

land that would be made by an owner of the same type of 

land, taking into account the uses for which the land is 

suited.”). However, because defendant and his family never 

testified how frequently they visited the area or walked over 

plaintiff’s property after 1989, it becomes more difficult 

to say that defendant has proved, by clear and convincing

evidence, “continuous” use of plaintiff’s property for a 10-year

period.

Even if, however, defendant and his family’s recreational use of plaintiff’s property were continuous, their 

use was not exclusive. As noted, plaintiff’s property consists 

of approximately 40 acres of undeveloped grassy beach on 

which a stand of trees and other flora grow near a small 

creek. Like the other coastal land nearby, it is a natural 

place for walking or picnicking. After testifying that he 

explored the trails on plaintiff’s property on those occasions 

when he visited his beach house, defendant explained that 

other visitors to Nedonna Beach also used plaintiff’s property for recreational purposes “[a]ll the time.” As defendant 

testified, other people routinely camped on plaintiff’s property, parked their trailers there, and went back on the trails 

that cross the property.

When, as in this case, defendant and his family’s use 

of plaintiff’s property is the same as or similar to other families’ use of that property, their use was not exclusive. Indeed, 

this case is difficult to distinguish from Fry v. Woodward, 

221 Or 39, 350 P2d 183 (1960). In that case, the land was 
862 Sea River Properties, LLC v. Parks

“low land, with brush, trees, and berry bushes” and remained 

unimproved except for a single fence. Id. at 41. The area was 

“largely used for picnics, swimming and fishing by all adjacent neighbors and the public generally.” Id. at 42. For that 

reason, among others, the court concluded that defendants’ 

use was “far from exclusive,” inasmuch as it “appear[ed] to 

have been in common with every one else.” Id. at 44.25

Because defendant and his family’s recreational use 

of plaintiff’s property is not sufficient to establish actual, 

continuous, and exclusive use for a 10-year period, we also 

consider the other category of “use” that defendant has 

identified—three agreements with local governmental bodies. In 1995, defendant granted an easement to the City 

of Rockaway for two backup wells and a related waterline 

that are situated on plaintiff’s property. In 1998, he agreed 

to permit the Port of Nehalem to cut brush to maintain a 

sight line. Finally, in 2000, he granted an easement to the 

Tillamook Peoples Utility District for an underground utility line just north of Section Line Road.

Defendant’s agreements with those local governmental bodies are relevant to his adverse possession claim 

in one respect. The act of entering into each agreement is 

a one-time manifestation of a claim of ownership, similar 

to payment of property tax. None of those acts, however, 

evidences defendant’s actual occupation or actual use of 

plaintiff’s property. Rather, they reflect his authorization for 

someone else to use plaintiff’s property. Perhaps recognizing that difficulty, defendant argues that the city, the utility 

district, and the port’s subsequent use of plaintiff’s property is attributable to him. That is, he argues that the city, 

25 Defendant also relies on the fact that, when he visited his beach house, he 

would gather firewood on plaintiff’s property and that once he “cut some branches 

that had grown into the roadway” on plaintiff’s land “so [he] could get [his] truck 

back there and get firewood.” Not only does a single instance of cutting some 

branches to maintain a road not establish continuous use, but occasionally gathering firewood on undeveloped land that the public routinely uses for recreational 

uses is not a sufficiently distinct use to be exclusive. See Hamilton v. Flournoy, 

44 Or 97, 102, 74 P 483 (1903) (engaging in the same uses as others did not constitute actual and exclusive use); cf. Wheeler v. Taylor, 32 Or 421, 436, 52 P 183 

(1898) (explaining that “occasionally cutting and carrying away rails and firewood from land chiefly valuable for timber was not such an open, notorious and 

continuous occupancy as would give title” under an adverse possession claim).
Cite as 355 Or 831 (2014) 863

the utility district, and the port’s use of plaintiff’s property 

establishes his actual, continuous, and exclusive use of it. In 

considering that argument, we begin with the easements he 

granted the city and the utility district.

This court has long recognized that a principal 

can base an adverse possession claim on his or her agent’s 

use of land. Springer v. Durrette, 217 Or 196, 203, 342 P2d 

132 (1959). An agent acts on the principal’s behalf, and the 

agent’s acts are attributable to the principal for the purpose 

of an adverse possession claim. See id. In this case, however, 

the utility district and the city were not defendant’s agents, 

nor were they even his lessees. Rather, defendant granted 

the utility district and the city a property interest (an easement) in plaintiff’s property that, once granted, the utility 

and the city owned. It is difficult to see how, having divested 

himself of an interest in property, defendant can rely on a 

subsequent owner’s use of that property interest to establish 

his own use.

To put the point a different way, if the utility district and the city wanted to bring an adverse possession 

claim against plaintiff, the utility district and the city could 

perhaps tack to defendant’s use. However, defendant cannot tack to their use. Having divested himself of an interest 

in the property, defendant cannot rely on the subsequent 

owner’s use to establish his use. Cf. Riverwood Commercial 

Properties, Inc. v. Cole, 138 NH 333, 336, 639 A2d 714 (1994) 

(holding that granting various easements was insufficient 

as a matter of law to establish the grantor’s adverse possession claim); State v. Heard, 199 SW2d 191, 195 (Tex Civ App 

1946), aff’d, 146 Tex 139, 204 SW2d 344 (1947) (rejecting 

an argument that an asserted easement over another’s land 

gave rise to an adverse possession claim).26

26 We note that, from 1989 to 1995, defendant was the apparent successor in 

interest to a lease and a license that Publishers Paper had given the city for two 

backup wells and a related waterline that were on the property. As a result of disputes with the city, defendant ordered the city to “cease and desist” its activities 

on the property in 1993 and brought a trespass action against the city in 1994. 

Even if defendant could rely on the city’s use of the property as his lessee from 

1989 to 1995 to establish his own use, he still faces at least two difficulties. That 

use does not establish use for a 10-year period. Moreover, defendant told the city 

that it had no right to be on the property and sued it for trespass, actions that are 

difficult to reconcile with his reliance on the city’s use. 
864 Sea River Properties, LLC v. Parks

Defendant also signed an agreement with the Port 

of Nehalem on June 6, 1998, which gave the port the right to 

cut brush to keep sight lines open between range finders and 

the end of the Nehalem Bay jetty.27 As the court explained 

in Real Estate Co., however, the right to use property differs 

from the actual use of that property; only the latter counts 

in determining whether there has been actual use that will 

support an adverse possession claim. 28 Or at 497. The 

record shows that, if port employees ever entered onto plaintiff’s property pursuant to the agreement, they did so only 

occasionally. Even assuming that the port employees’ entry 

onto plaintiff’s property is attributable to defendant, their 

occasional use does not constitute the sort of continuous use 

that will establish adverse possession.

Whether viewed individually or collectively, defendant’s recreational use of the plaintiff’s property and the 

third parties’ use of that property are not “significant 

enough” to establish, by clear and convincing evidence, 

actual, continuous, and exclusive use of the property for a 

single 10-year period. Cf. Hoffman, 329 Or at 564 (employing that standard). The uses are either non-exclusive (defendant’s recreational use), or they are not continuous (the 

port’s use and perhaps defendant’s recreational use). Some 

of the uses on which defendant relies (the easements) are not 

attributable to him, and his payment of taxes constitutes a 

claim of ownership but not actual use of the property.

Beyond that, those uses do not all occur within the 

same 10-year period. On the one hand, defendant’s recreational use, to the extent it occurred after 1989, occurred 

more frequently initially and diminished as time passed. On 

the other hand, defendant did not agree to permit the port to 

enter plaintiff’s property until 1998, and it is unclear when 

or how frequently after that date port employees actually 

entered the property. Taking the trial court’s findings of 

historical fact as true, we conclude that defendant’s use of 

plaintiff’s property does not establish, by clear and convincing evidence, actual, continuous, and exclusive use of that 

property for a 10-year period.

27 The range finders allow boats coming in from the ocean to line up at the 

channel and enter the Nehalem River.
Cite as 355 Or 831 (2014) 865

We summarize our conclusions briefly. We agree 

with the trial court that plaintiff’s predecessors in interest 

(and plaintiff through them) acquired title to the accreted 

property. We disagree with the trial court that defendant acquired title to that property by adverse possession. 

Because the trial court erred in entering judgment in defendant’s favor based on adverse possession and because the 

Court of Appeals erred in affirming that judgment based on 

accretion, we reverse the trial court’s judgment and Court of 

Appeals decision. We remand this case to the trial court for 

entry of a judgment consistent with this decision.

The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded 

to the circuit court for further proceedings.