Kramer v. City of Lake Oswego

**425Plaintiffs seek a declaration that the City of Lake Oswego must allow them recreational access to Oswego Lake, either from the shoreline of the city's waterfront parks-from which the city prohibits all water access-or through the city's residents-only swim park. According to plaintiffs, the common-law doctrines of public trust and public use protect the public's right to enter the lake, and the city's restrictions on access to the lake are contrary to those common-law doctrines. Plaintiffs also contend that the city's restrictions violate the Equal Privileges and Immunities guarantee of the Oregon Constitution, Article I, section 20. Defendants are the City of Lake Oswego and the State of Oregon, as well as the Lake Oswego Corporation, which holds title to riparian rights to the lake.1 The case reaches this *6court following a summary judgment in which the trial court assumed that the lake is among the public waterways to which the doctrine of public trust or public use applies but held that neither those doctrines nor Article I, section 20, entitle plaintiffs to the declarations that they seek. The Court of Appeals affirmed, also without deciding whether the lake is a public waterway and this court allowed review.

We conclude that the trial court correctly granted summary judgment on plaintiffs' Article I, section 20, challenges. We also conclude that neither the public trust nor the public use doctrine grants plaintiffs a right to enter the swim park property and that the public use doctrine does not grant plaintiffs a right to access the water from the waterfront parks. But we conclude that, if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public's right to enter the water from the abutting waterfront parks. Accordingly, the case **426must be remanded for resolution of the preliminary question of whether the lake is subject to the public trust doctrine and, if the lake is subject to that trust, then for resolution of the factual dispute regarding whether the city's restriction on entering the lake from the waterfront parks unreasonably interferes with the public's right to enter the lake from the abutting waterfront parks.

I. BACKGROUND

Most of the land surrounding Oswego Lake is privately owned, but the city has an interest in four properties that abut the lake. Along an area of the lake known as Lakewood Bay, the city has created three waterfront parks, called Millennium Plaza Park, Sundeleaf Plaza, and Headlee Walkway. The fourth property is a small swim park on city land abutting the shore of the main lake.

Recorded ownership claims to the land surrounding Oswego Lake date to 1850, when two early settlers staked a federal Donation Land Claim to land abutting what was then called Sucker Lake. Eventually, a company called Oregon Iron & Steel acquired all of the property surrounding the lake and, over time, built dams and an artificial channel. Those projects increased the lake to its current size. In the early 20th century, Oregon Iron & Steel created a residential development around the lake. In doing so, the company platted subdivisions and changed the lake's name to "Oswego Lake." When the company sold off the lots abutting the lake, it reserved to itself ownership of the riparian rights and then transferred those rights to Lake Oswego Corporation, whose shareholders-waterfront property owners and others-pay dues in exchange for access to the lake.

During the same era, Oregon Iron & Steel deeded two parcels of waterfront land to the city, with a covenant that the land was to be used "by the resident children of Lake Oswego" for purposes of recreation. Those parcels became the swim park, which is open during July and August each year. The swim park land is fenced on three sides and bordered on the water side by a fenced dock, which creates a small, enclosed swimming area-smaller than an Olympic-size pool-and prevents access from the park to the open **427lake. The city limits use of the park to city residents and limits water activities to swimming.2

More recently, the city acquired the properties on which the three downtown, waterfront parks are located. Two of those parks, Headlee Walkway and Sundeleaf Plaza, have physical barriers that prohibit entry into the water. Millennium Plaza Park, which the city acquired through condemnation, has steps that lead from the park to the water. Millennium Plaza Park also has a grassy area from which plaintiff Prager entered the lake in the past. Although the waterfront parks are open to the public, the city has prominently posted signs at Millennium Plaza Park announcing, *7"Private Lake. Please stay on the steps." The city also passed a resolution prohibiting entry into the water from the city's waterfront parks. That resolution provides, in pertinent part:

"It is prohibited for any person to enter Oswego Lake from Millennium Plaza Park, Sundeleaf Plaza or the Headlee Walkway by any means or method, including, without limitation, by wading or swimming, or by using water vessels or other floatation devices.

"20. Leaving the Pathway Portion of the Headlee Walkway

"It is prohibited for any person to leave the pathway portion of the Headlee Walkway when using that facility, or to climb, traverse, or occupy the fencing or the planted areas adjacent to the path."

(Underscoring in original.)

Plaintiffs, who have no access to the private land surrounding the lake, filed suit under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160. They alleged that they have an interest in swimming in and kayaking on the lake, and they sought declarations that the city's waterfront-parks resolution and the city's resident-only policy for the swim park are invalid. Plaintiffs' amended complaint asserts three bases on which they contend that the restrictions are invalid.

**428In their first claim, plaintiffs allege that, even if the beds of Oswego Lake are privately owned, the waters of the lake are owned by the State of Oregon and

"are held in trust for the preservation of the public right of recreation, including paddling, canoeing, boating, and swimming, and other public rights which all citizens enjoy in such waters under common law[.]"

Thus, plaintiffs allege, the resolution and residents-only swim park rule are unlawful and preempted by the "Public Trust Doctrine and/or Public Use Doctrine."

In their second claim for relief, plaintiffs similarly allege that the resolution and swim park rule are unlawful and preempted by the "Public Trust Doctrine and/or Public Use Doctrine." But on this claim, plaintiffs request a declaration that "the submerged and submersible lands below the ordinary high water mark of the Lake have been and are owned by the State of Oregon and held in trust for the public since the time of statehood[.]"

Finally, in their third claim for relief, plaintiffs allege that both the waterfront-parks resolution and the swim-park rule violate Article I, section 20, of the Oregon Constitution, by effectively "granting to a small class of citizens monopolistic privileges of access to the waters of the Lake, which upon the same terms, did not equally belong to all citizens."

Plaintiffs filed a motion for partial summary judgment on their first claim, contending that the public has a right to use the lake as a matter of law, regardless of ownership, and defendants each filed cross-motions for summary judgment. In resolving the motions against plaintiffs' first two claims, the trial court assumed that the public has a right to use the lake under the "public trust" and "public use" doctrines, but the court determined that neither doctrine gave the public a right to use the city's land to reach the water. Thus, the trial court granted defendants' motions against plaintiffs' common-law claims and declined to resolve the preliminary question of whether the public has a right to use the lake under either the "public trust" or "public use" doctrine. The trial court also determined that **429the city's policies did not violate Article I, section 20, and, therefore, granted defendants' summary judgment on the third claim for relief as well. The Court of Appeals agreed with the trial court's reasoning and affirmed the grant of summary judgment to defendants. Kramer v. City of Lake Oswego , 285 Or. App. 181, 183-84, 395 P.3d 592 (2017).3 We allowed plaintiffs' petition for review. *8II. ANALYSIS

As the case is presented to this court, we assume-without deciding-that Oswego Lake is among the navigable waterways that the state holds in trust for the public. Neither the trial court nor the Court of Appeals addressed the preliminary question of the lake's status, and defendants do not contend that the lake's status can be resolved as a matter of law. Defendants argue instead that, regardless of the public's interest in the lake as a whole, the Court of Appeals correctly concluded that plaintiffs are not entitled to the declaratory relief that they have sought. We agree with the Court of Appeals in part. We conclude that, regardless of the lake's status, neither the public use doctrine nor Article I, section 20, entitle plaintiffs to the declarations that they seek. However, if plaintiffs are correct that the lake is a navigable waterway subject to the public trust doctrine, then genuine issues of material fact preclude a determination on summary judgment that the city is authorized to prohibit the public from entering the water from the public waterfront parks. Accordingly, we reverse the judgment for defendants on plaintiffs' second claim for relief and remand for the trial court to resolve the remaining issues, including whether the lake is publicly owned.4

Plaintiffs' three claims for relief all depend to some extent on their premise that the assumed public interest in **430Oswego Lake includes a right of access to the water from the abutting upland. Thus, we begin with an overview of the public's interest in waterways, generally.

A. Overview of the Public Right to Use Oregon Waters

In Oregon, two related doctrines create a public right to use certain bodies of water, regardless of who owns the abutting upland. The first applies to bodies of water that are considered navigable as a matter of federal law. Title to the lands underlying those navigable waters passed to the state when Oregon was admitted into the Union, to be "held in trust for the public uses of navigation and fishery[.]" Corvallis Sand & Gravel v. Land Board , 250 Or. 319, 334, 439 P.2d 575 (1968) (quoting Winston Bros. Co. v. State Tax Com. , 156 Or. 505, 511, 62 P.2d 7 (1936) )5 ; PPL Montana, LLC v. Montana , 565 U.S. 576, 591, 132 S. Ct. 1215, 182 L. Ed. 2d 77 (2012) (explaining statehood transfer of title to the lands underlying navigable waters). The second doctrine recognizes a public right to use other waterways, even if title to the underlying land is privately held, as long as the water is "navigable in a qualified or limited sense." Luscher v. Reynolds , 153 Or. 625, 631, 634, 56 P.2d 1158 (1936).

The first doctrine originates with the British claim to ownership of the land that became the United States. PPL Montana , 565 U.S. at 589-90, 132 S.Ct. 1215. At English common law, the crown was considered to hold title to the beds of "waters subject to the ebb and flow of the tide[.]" Id. at 589, 132 S. Ct. 1215 ; see also Pacific Elevator Co. v. Portland , 65 Or. 349, 379, 133 P. 72 (1913). Dominion over those waters was deemed "vested" in the crown "as the representative of the nation and for the public good." Pacific Elevator , 65 Or. at 379, 133 P. 72. Thus, "the public retained the right of passage and the right to fish in the stream." PPL Montana, 565 U.S. at 589, 132 S.Ct. 1215.6

*9**431The British monarchs claimed the same authority over the bodies of water on the American continent, and that claim of the sovereign's dominion was transferred to the original thirteen states following the American Revolution. Pacific Elevator , 65 Or. at 379, 133 P. 72. However, the British concept of tidal influence failed to account for the "vast number of major inland rivers upon which navigation could be sustained" on this continent, so the doctrine was expanded in this country to include sovereign (or state) ownership of the beds of bodies of water that were "really navigable," even if not obviously affected by the tides. PPL Montana, 565 U.S. at 590, 132 S.Ct. 1215 ; see also Illinois Central Railroad v. Illinois , 146 U.S. 387, 436-37, 13 S. Ct. 110, 36 L. Ed. 1018 (1892) (explaining that doctrine of sovereign ownership "is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide"-and thus that "the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations").

As the other states later joined the union, with the status of "coequal sovereigns under the Constitution[,]" the same principle of ownership was extended to waters within **432the borders of each state. PPL Montana , 565 U.S. at 591, 132 S.Ct. 1215. Thus, "the people of each State, based on principles of sovereignty, 'hold the absolute right to all their navigable waters and the soils under them,' subject only to rights surrendered and powers granted by the Constitution to the Federal Government." Id. at 590, 132 S. Ct. 1215 (quoting Martin et al. v. Waddell, 41 U.S. (16 Pet.) 367, 410, 10 L. Ed. 997 (1842) ). Because that right of ownership arose as a result of the new states' constitutional status as coequal sovereigns, it is known as the "equal-footing doctrine,"7 and the question of which waters are "navigable" for purposes of state ownership must be determined as a matter of federal law. PPL Montana, 565 U.S. at 591, 132 S.Ct. 1215.8

In addition to that doctrine of public ownership of the lands underlying navigable bodies of water, Oregon also enforces the public's right to use other waterways that are "navigable in a qualified or limited sense." Luscher , 153 Or. at 634, 56 P.2d 1158. Waterways subject to that doctrine are sometimes referred to as water that is "navigable in fact," which distinguish them from waterways that are "navigable" under federal law. Shaw v. Oswego Iron Co. , 10 Or. 371, 375, 45 Am. Rep. 146 (1882). The doctrine, known as the right of "public use," initially was applied primarily to facilitate the floating of logs down rivers that did not meet the federal test for navigability. See, e.g. , *10Lebanon Lumber Co. v. Leonard , 68 Or. 147, 136 P. 891 (1913) ; Weise v. Smith , 3 Or. 445, 450, 8 Am. Rep. 621 (1869). The same doctrine, however, has long recognized that the public has a "superior right" to use the water for other navigational purposes, including a "boat used for the transportation of pleasure-seeking passengers[.]" Luscher , 153 Or. at 635, 56 P.2d 1158 ; see also **433Guilliams v. Beaver Lake Club , 90 Or. 13, 27, 175 P. 437 (1918) ("Even confining the definition of navigability, as many courts do, to suitability for the purposes of trade and commerce, we fail to see why commerce should not be construed to include the use of boats and vessels for the purposes of pleasure.").9 As to those bodies of water subject to the doctrine of "public use," this court has explained that "the public has an easement" because the waters are "deemed public highways" for purposes of navigation and commerce. Luscher , 153 Or. at 635, 56 P.2d 1158 (quoting Guilliams , 90 Or. at 19, 175 P. 437 ).

Thus, for waterways subject to the "public trust" doctrine, the public has a right to use water because the state owns the underlying land in trust for the public, while for waterways subject to the "public use" doctrine, the underlying land remains privately owned. We have emphasized, however, that for either category of waterway, "the public has the paramount right to the use of the waters." Id. at 634-35, 56 P.2d 1158. With the benefit of that overview, we proceed to a more detailed consideration of each of plaintiffs' claims.

B. Plaintiffs' Right to Gain Access from Land Under the "Public Use" Doctrine

In their first claim for relief, plaintiffs contend that, regardless of ownership of the underlying land, the public has a right to use the water of the lake that includes a right to access the water from the city-owned land that abuts the water. This claim rests on the second of the two doctrines discussed above, the "public use" doctrine. We conclude that the theory behind the doctrine of "public use" does not extend to a right to demand access across the abutting upland to reach the public water. As explained above, the theory of **434the "public use" doctrine is explained as an "easement" to use the water "highways" of the state. See, e.g. , Shaw , 10 Or. at 375 (streams that are "navigable in fact" are considered "public highways," on which "the public have an easement for the purposes of navigation and commerce, but title of the subjacent soil to the middle of the stream[ ]" is privately held); Guilliams , 90 Or. at 19, 175 P. 437 (same).

Thus, this court has applied the doctrine to prevent those who own the underlying land from interfering with the public's use of the waterway as it flows over that private land. See Luscher , 153 Or. at 625, 56 P.2d 1158 (disputed ownership to part of land along and underlying Blue Lake could not prevent owners of other lakefront property from navigating recreational boats into section of lake abutting land that they did not own); Hallock v. Suitor , 37 Or. 9, 60 P. 384 (1900) (upstream owner had right to construct dam on her land but could not block the stream down which public had a right to float logs); Weise , 3 Or. at 446 (downstream land-owner could not prevent placement of temporary boom necessary for the successful floating of saw logs down the Tualatin River). But this court has not applied the principle of a public easement to use the waterway to create a different and additional public easement to use the abutting upland to reach the water in the first place.

Indeed, this court has written that where "the bed and banks of the stream are owned by the riparian proprietor, the navigability of the stream does not give to the navigator a right of way on the land. That *11can be acquired only by the exercise of the right of eminent domain." Lebanon Lumber , 68 Or. at 150, 136 P. 891. Lebanon Lumber also endorses the established rule that "[t]he right of navigation ceases *** at the water's edge" and that the "public have, therefore, as against the riparian owners, and as incident to the right of navigation, no common-law right to use the land adjoining a river above the high-water mark." Id. at 150, 136 P. 891 (quoting John M. Gould, A Treatise on the Law of Waters § 99, 191 (3d ed. 1900) (internal quotation marks omitted)). We emphasized a similar point in Guilliams , in which we concluded that the plaintiffs had "a right to navigate the stream down to and across the lands of" a downstream owner, but that they did not have "any right to land at any point on defendant's land **435without permission." 90 Or. at 30, 175 P. 437 ; see also Haines v. Hall , 17 Or. 165, 172, 20 P. 831 (1888) (even if a logger had the right to float logs down the river, he did not have a right to "station his men along its banks").

Nevertheless, plaintiffs contend that this court has also applied the doctrine of "public use" to require that abutting land owners permit "the incidental use of beds and banks of Oregon's public waterways." They rely on Weise , in which this court held that the owner of an island in the Willamette River was not entitled to recover in trespass against the defendant, who temporarily attached one line of a boom to the plaintiff's island to direct logs that he was floating downstream. 3 Or. at 451. This court phrased the question before it as: "How far, then, may one, who has an undoubted right to navigate the stream, meddle with or touch upon the bank of the stream, which is private property?" Id . at 450. In answer, this court concluded that, "[w]hile it is beyond question that the riparian owner is entitled to be protected from any unnecessary intrusion on his premises, it is equally certain that he cannot, solely for maintenance of an abstract right, or an exclusive possession, deny to the public the right of navigation." Id . at 450-51.

Out of context, the quotes from Weise could seem to lend some support to plaintiffs' argument. In context, however, Weise identifies a narrow exception to the general rule that those engaged in use of the water highways are prohibited from interfering with the land at all. We explained that the defendant, who was engaged in the business of floating logs down to a sawmill in Oregon City, out of "necessity" placed a boom above Willamette Falls to prevent the logs from being swept over the falls as they entered the river. To trap the logs, one line of the boom was temporarily attached to the plaintiff's island. But, attached in that way, the line "intercepted the most convenient course of the plaintiff's skiff, in which he was accustomed to pass to and from Oregon City, his ordinary market place." Id. at 447.

To the extent that Weise remains good law, it should be understood as a narrow exception to the rule that this court repeatedly announced in later cases, that "the navigability of the stream does not give to the navigator a right **436of way on the land." Lebanon Lumber, 68 Or. at 150, 136 P. 891 ; see also Guilliams , 90 Or. at 30, 175 P. 437 ; Haines , 17 Or. 165, 20 P. 831. The exception appears to have been a product of two factors: first, the burden on the landowner was incidental and temporary; and second, without imposing that incidental burden on the landowner, the navigator could not continue floating his logs to the downriver sawmill. As this court emphasized in Weise , whatever right a person navigating a stream has to "meddle with or touch upon the bank of the stream," the right is based on the "necessity" of completing the process of floating logs downstream. 3 Or. at 450.

But plaintiffs do not seek just an incidental and temporary burden on the land that is a "necessity" to continue their existing use of the water. Rather, plaintiffs seek a declaration that the owner of abutting upland must allow the public to use that land to enter the lake in the first instance. The "public use" doctrine does not support that declaration. Thus, the trial court correctly granted summary judgment on plaintiffs' first claim for relief, which rests on the public's right to use a waterway even when the underlying land is privately owned.10

*12C. Plaintiffs' Right to Gain Access to the Water Under the "Public Trust" Doctrine

Plaintiffs' second claim for relief alleges a right of access to the lake that is premised on the state's alleged ownership of the underlying land in trust for the public.11 Plaintiffs' argument in support of that claim for relief depends on two premises. First, plaintiffs contend that the doctrine of "public trust" would preclude the state from unreasonably restricting access to publicly-owned water. Second, plaintiffs contend that the same limitations apply to the city. Defendants disagree with both propositions. They **437contend that they were entitled to summary judgment on this claim because, even if the state holds title to the lands underlying Oswego Lake, that public ownership does not create a public right to enter the water from the abutting upland and, in particular, does not require the city to permit access from city-owned upland. We conclude that the trial court erred in granting summary judgment. We begin by explaining why the scope of the public's rights with respect to the navigable waterways subject to the public trust doctrine includes a right of access from public land, and we then explain why a city's authority to interfere with