Daily Development for Friday, November 1, 2002
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

SUBDIVISIONS; DESCRIPTIONS; WATERFRONT LAND: Where a subdivider owns oceanfront land, and lays out a plat showing a road running parallel to the oceanfront, with lots identified only on the landward side of the road, the subdivider will be presumed to have reserved the land on the ocean side of the road for himself, notwithstanding the ordinary presumption that would have set the borders of oceanfront lots as the ocean line itself.

 Coussens v. Stevens, 113 P.3d. 952 (Or. App. 2005)

Kraemer owned a parcel with a western boundary as the Pacific Ocean shoreline.  In 1903, he recorded a subdivision plat laying out lots along identified streets.  The plat purported to cover the entire property, all the way to the shoreline, but there was a street, Ocean Avenue, along the shoreline, and the platted lots were shown only to the east of Ocean Avenue.  Modern surveyors estimated that there was 39 feet or more of property owned by Kraemer west of Ocean Avenue (and apparently covered by the plat.

In 1988, defendants purported to quiet title to a portion of the land west of Ocean Avenue.  They published notice only by publication, and did not specifically serve any owners of any lots in the subdivision.  But defendants have asserted possession of the land in question and claim in addition adverse possession of the property.  Based on a default judgment in defendant’s favor in the 1988 quiet title action, the city has treated defendants as owners of the disputed property and defendants have been paying property taxes on the land at least since 1988.

In 2004, a dispute arose when owners of the lots in the subdivision desired to develop a sand grading and vegetation management program for the land near the ocean, including that land claimed by defendants.  The City refused to include the land within the plan unless defendants agreed, and defendants refused to participate. 

Plaintiffs were owners of the westernmost lots in the subdivision, on the east side of Ocean Avenue.  They claim title to the property by virtue of the their succession to title held by a land company formed by Kraemer, to which Kramer transferred those lots for marketing to plaintiffs predecessors.   They brought a quiet title action against defendants.  The trial court granted summary judgment to plaintiffs based upon their purported title. 

The sole issue on appeal was whether plaintiffs derived title to the oceanfront property on the western side of Ocean Avenue by virtue of their deeds.  The court noted that, to secure quiet title, plaintiffs had to prevail on the basis of their own title.  It was not enough to show weaknesses in defendants’ title. 

What made the case interesting was that the Oregon Court of Appeals, only a few years before, had decided a case involving a tract just north of the one in question, in which it had concluded that subdivision deeds of property along the ocean front implicitly transferred the grantor’s interest in property to the water’s edge, even though the deeds contained specific metes and bounds descriptions that did not include the water as a boundary.  Based upon this precedent, most likely, the trial court granted summary judgment to the plaintiffs.

But the Court of Appeals reversed, basing its decision on an earlier case involving lakeside property in Klamath Falls, Oregon.  In that case, like the instant case, a common owner of the subdivision property and the lakefront property conveyed lots along the lakeside edge of the subdivision.  But the subdivision, like this case showed a road separating the conveyed lots from the lake property.  Under these circumstances, the court concluded, the road “makes all the difference” and there is no presumption that the grantor intended to convey the waterfront land on the other side of the road.  Once the presumption dropped out, then the deeds became ambiguous, since the plat showed the waterfront, but the deeds and roadway had specific survey descriptions.  This led to the court to invoke statutory rules of construction::

"(1) Where there are certain definite and ascertained particulars in the description, the addition of others, which are indefinite, unknown or false, does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application.

        "* * * * *

"(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.

"(5) When tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.

"(6) When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars."

Following these rules, the court concluded that the subdivision map specifically identified the boundaries of the lots and road, and that therefore subsection (6) above, compelled adherence to those boundaries, even if that reference was inconsistent with the inference that might otherwise be drawn that the grantor intended to dispose of the narrow strip on the ocean side of Ocean Avenue. 

Comment: Obviously what the author found interesting here was the notion that the existence of the road “makes all the difference” when there are no lots on the beach side of the road.  The court says it, but that doesn’t automatically mean that it makes sense.  If a lot described by metes and bounds with specific boundaries would have implicitly had a portion of the oceanside property if there had been no road, notwithstanding Section 6, then why isn’t the same true when the road is taken into account. 

Readers are encouraged to respond to or criticize this posting.

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