*1 r Argued April 10, petition fo March reversed rehearing denied June Re CO., CORVALLIS SAND & GRAVEL spondent, v. LAND STATE BOARD , Appellant. P. 2d *2 Attorney Herman, Assistant General,
Peter 8. appellant. argued for him on the cause With Salem, Attorney Y. General. Thornton, Bobert was the briefs argued Tongue, Portland, H. cause Thomas respondent. were Bobert him on briefs Mix, With Dale & Port- Strader, and Tongue, Hicks, Corvallis, land. and Chief Justice,
Before Perry, McAllister, and Jus- Denecke Lusk, Goodwin, O’Connell, Sloan, tices. J.
LUSK, brought by equity Corvallis Sand a suit This is enjoin corporation, State a Co., Gravel & through acting the State Oregon, Board, Land ejectment commenced prosecuting an action of from corporation. The state de- the state ground complaint that its alle- on murred equitable defense to the constitute “do not gations brought by ejectment action allegations of
32L Oregon”; the de- trial court overruled refusing рlead a de- further, murrer the state and, plaintiff. The favor of was entered cree appeals. alleges ejectment complaint action in the sovereignty, and at now, virtue of its state, into the has Union, admission
all the state’s times since lying Eiver of the bed of the Willamette the owner been par- in a Linn location Benton and Counties within ticularly defendant Corvallis Sand described; wrongfully and for six withholds, now Co. & Gravel filing complaint, years immediately prior continuously possession wrongfully withheld, has property the state and that the rea- of such real property said real annual use of value of the sonable Judgment asked for the immediate was $50,000. damages property possession sum such *3 of $300,000. (hereinafter plaintiff, referred to as the cor-
The filing of a poration) before instead in the suit us, complaint ejeсtment pleading filed a in action, in the allegations equity, which be summarized of the corporation that the state owns denies as follows: damaged question property in or has been as real the alleges ejectment alleged that as a re- action; in the change in the channel of the Wil- avulsive of an sult of new in November channel was Eiver, lamette private held in over land owner- flowed formed, which ship channel underwent further said avulsive and changes extensive excavations result of made as the prede- that about 1920 the to 1918; from 1913 therein operation corporation commenced aof the of cessor gravel the avulsive channel and business on sand and ownership present corporation “of the bed claims the high of the Willamette River below water marks” in controversy; gravel in the location that such sand and corporation business has been conducted and its predecessors continuously, openly notoriously and year present since the such 1920; business at the time grosses per year, capital $1,000,000 has value in ex- employs many persons, cess as 100 $500,000, has payroll supplies an annual in excess of and $400,000, per gravel of the used in cent sand construction vicinity of Corvallis and obtains most of its allegations from channel. There follow materials said part intended to show laches on the of the bringing ejectment to wit: The state has action, operation corporation been aware of the prior predecessor corpora- its since private ownership prior tion’s claim of of such channel; filing ejectment through action the state, Land filed two suits to еstablish its claim Board, ownership to the result- channel, first, involuntary plaintiff ing in an nonsuit “because the had prove and the re- case,” second, failed to its voluntary sulting state. Further- dismissal alleged prejudice are to show to the cor- more facts delay resulting long poration of the state in from the rights expense litigation, pay- asserting —the corporation property on the real ment of taxes difficulty establishing, long dispute, and the so surrounding facts the formation event, after the prayer channel. The decree of the avulsive prosecuting enjoining perpetually the state any legal prosecuting action in ejectment action any por- maiding claim whatsoever to the premises or *4 question. River in the bed Willamette tion going question will be decided before procedural A adopted in the аmendment 1917, Since to 'the merits. authorizing in now ORS the defendant a law 16.460, np equitable action to an set defense in his answer, corporation’s complaint, as the cross-bills, such have permissible. not been Prior to .the amendment the stat- “except ute abolished as hereinafter men- cross-bills, provided and that “where the defendant tioned,” arising requiring entitled to out of facts relief, interposition equity, of a court of material to his may, upon filing he his answer also defense, therein, complaint plaintiff, equity, file a in in the nature of stay proceedings which shall cross-bill, at law,” § L L etc., O 390. Under ORS 16.460 cross-bills are any exception, provision abolished without and the filing by complaint equity the defendant of a in the nature of a cross-bill is eliminated and in its place frequently familiar is substituted the now provision authorizing filing invoked of what has equitable an become known as answer. question passed upon Hopka was 294 P
Forbes, 91, where the court 342, at said, page 93: filing by
“The of a cross-bill defendant in a interposing equitable law action, defense to the longer permissible By no under our code. action, chapter especially Laws of cross-bills were procedure existing prior and the abolished thereto very simplified much amended statute.” Hughes Flier ux., et Or See, also, P2d 992. contrary ruling Meade,
A Churchill v. Hopka P was not cited v. Forbes, overruled that decision Churchill v. Meade sub but properly opinion so, because the silerdio, give changes fails to effect to the latter case *5 in statute to which we have called attention and, par- cross-bills. ticular, provision abolishing as Treating complaint, however, though in an affirmative defense of lachеs was set forth equi we are of table answer filed to pursuant statute, that is not available to the such defense opinion an action at law and Ejectment is laches corporation. a the aid seeking available of only against party that It is an of the doctrine equity equity. application as stated “in only by Pomeroy, aids the vigilant or, may applications properly regarded some its a form of more yet general principle, special 2 Pomeroy’s must do equity.” He who seeks equity “Laches (5th Jurisprudence ed) 169-170, §418. Equity to in suits applicable equity”: is a doctrine peculiarly Note numerous cases. This §419, 7, citing Idem, 172, as a the doctrine of laches court has never applied ex rel. action at law. The case of to an defense District No. & Trust v. School Co. Security Savings only P2d seem 31 P2d This the rule. was prоceeding to exception ing “action at law” in the denominated warranto, quo laches The defendants pleaded 30.510. OES statute, this defense and the latter urged of the relators This court held in suits equity. only available was before it the proceeding available because the defense of the After a brief review in nature. equitable court said: warranto, history quo * “* * chancery from a court Issuing foreign a nature to a return of commanding ' it follows that law, the courts writs of was an authorized proc- warranto law quo common nature equi- remedy of a assertion for the ess defendant disclosure namely, table, claim the franchise exercises he under which ' question. Oregon gives remedy “The statute in lieu quo law of the common writ of warranto and calls remedy merely an action at law. It is in truth statutory proceeding equi- a table as well as the exercise of the right compel mentioned, disclosure as above whether the determine franchise being legally question is exercised.” 148 atOr 285- By recognition gave this decision court rule that laches not be used as a defense *6 purely legal. prevailing It a claim is the rule in to this-countrv. In addition the authorities above cited, Conklin, v. 314, 326-327, Wehrnman 155 US 15 see S Ct Eq Horner v. 13 Jobs, L ed NJ Clark 129, 167; 19; 39 Clapp, Thorpe 248; v. 14 RI v. Wm. Filene’s Co., Sons (DC Mass); F2d Kitchens v. Wheeler, 40 269 200 Ark v. 671, 34; Lofton, 141 SW2d Fox 681, 185 Ga 195 456, Lowry Lyle, v. Mich 573; SE 226 676, 684, 198 245; NW Equity (2d ed) on MeClintock 75-76; 1 Wood on Limi ed) (4th Ejectment § 287; tations 898, 28 CJS 49. equity merged
In a few states where law and are apply. the doctrine under consideration does not But, we Bank held Gellert v. Nat. Assn., of California 214 P 377, 107 Or ORS 16.460“does not abol ish the distinction between at law actions and suits although equity, it avoids some of the inconveni formerly away ences suffered аnd does with a few of merely steps previously formal which were re hardly quired.” corpora And it need be said that the by filing seeking enjoin tion did suit the state’s not, ground law on the action at succeed in laches, con equity. verting that action into suit in assumption plea But even on'the of laches corporation be otherwise available to the would public' bringing ejectment negligence officers 326 pre- for the now he stated,
action reasons cannot, obtaining the state from the relief to which it clude in a this claims to be entitled case of character. touching will now review our decisions this
We
brought
question. In two suits
the state to cancel
swampland
deeds to
issued
the defense of laches
it,
Valley
v.
Co.,
State Warner
Stock
56
sustained:
Oregon Hyde,
P
v.
861;
P
State
283, 106 780, 108
Or
Ann
P
P
Cas
88 Or
171
1918E
1,
757,
582,
688,.
holdings
quo
There
which more later.
were similar
Seсurity Savings
rel.
warranto actions: State ex
&
supra;
District No.
ex
Trust Co. v. School
State
rel.
9,
Hallgarth
District No.
v. School
179 Or
Teegarden
High
rel.
v.
School,
P2d
State ex
Union
655;
ex rel.
53 P2d
State
1047;
Similarly rel. District in ex Schоol v. Teegarden ex rel. v. Union that State No. 23 we said Hay- High rel. and State ex School Weatherford instances which this court two recent worth “are acting upon it is when the state, that laches bars held a private from party, relation of challenging of a school district.” validity (Italics added.) 179 Or at 461. City Pendleton v. this court held in
Further,
Holman,
532,
177 Or
164 P2d
162 ALR
434,
249,
the defense of laches was available in a suit
aby mu
nicipality to foreclose
for a street
improvement
lien
assessment. The
of the decision was that
ground
to collect
city,
attempting
act
assessment, was
capacity.
“As appealing defendants interpose objection thаt been plaintiff has guilty laches.
By the weight
the defense of
authority,
laches
is not available against
state or
government,
in a suit
national,
by it to enforce a
or
public right
protect
interest:
C. J., Subject:
page
section
Equity,
authorities cited
in note
It
cannot be gainsaid that
suit
by this
‹ Blue
City
Union,
hold,
75 P2d
does not
suggested
corporation’s brief,
undertaking by
that an
city
proprietary
activity
when
is an
“from which it derives
a revenue.”
We said
that case:
**
great
Now, no matter how
nor how numerous
“*
distinguishing
be the difficulties
between these ca-
pacities,
corporation
it is established law that when a
exer-
purely corporate
proprietary
private function,
cises a
or
example,
operation
such for
as the maintenance
aof
municipal
airport
public utility,
system,
wharf or
or
or water
revenue,
subject
from whiсh it derives a
it is
suit
without
statutory authority,
any
similarly
the same as
individual
en-
* *
gaged
the state seeks to enforce a public at 214. a interest.” 152 Or in In re The same doctrine was enunciated Estate of validity Moore, 190 223 P2d where a devise of to the lands United States Grovernment question govern- was it was contended that asserting claim. ment was late employed have also held that laches not be We proceeding brought in a disbarment defense instrumentality Oregon which is “an Bar, State Department government of the of the Judicial Kelly Oregon”: Farris, In re 9.010; J. ORS P2d 229 Or estoppel. Industrial is akin to In Rohde v. State
Laches Com., Ac 108 Or 217 P claimant с. compensation from the Industrial Accident Fund for urge estopped contended that the commission insufficiency application compensation. of his of the commission held that the fund hands We money; Compensation Law that the Workmen’s is trust power, governmental, police under the was enacted goverm proprietary all and that “in function; not a proprie distinguished from mere affairs as mental any tary the state nor of its officers neither matters, any capacity estopped acting governmental in a any at 438. The court went such officer,” act of following People approval quote with on Ill 435: Brown, prevent policy, loss to “Public negligence
through the forbids officers, estoppel application of the doctrine representa- growing the conduct out of state, ground thе same officers. On of its tions consequence of government from the is excused *9 by negligence it should not be affected laches, the any (Ci- willfulness even one of its officers. omitted.)” tations at 438-439. Commission, In v. Tax Johnson P2d Or acknowledged applied we what 302, ception was to be an ex- general to and held in a case involv- rule, ing obviously governmental collection of taxes — government estopped it function—that was when taxpayer regarding misinformed a to his loss time required exemption within which he was to establish from valorem tax his ad on automobile. This doctrine rarely only applied was and said to be when to refuse apply high degree.” “inequitable be to it would to a very
Finally, question before whether us, viz., against laches can be invoked state when asserting its title to the of the Willamette Eiver, bed open MсVey, 121 P2d was left State v. by P2d 181. This was a suit the state for
461, 123
proceeds
gravel
accounting of the
sand, rock
the river
the defendant from the bed of
removed
enjoin
removing
further
such
defendant from
laches was
held that the issue of
materials. The court
pleaded
not
and not
not
case because it was
expressed
below,
court
and added that it
raised in the
opinion
was available
no
whether laches
providing
limitations should
рublic corporations, Oregon
page
or other
Laws 18. Such has been the law ever since. OIíS 12.250. The
only
Valley
cause of suit in Warner
case
held
be barred
laches involved
deed issued in 1883.
govern
Statutes of
do not
limitation,
course,
suits
equity,
applied by analogy,
but
and that is
what the court did. The case
was before
court on
complaint
demurrer to the
and the court held: “More
statutory period
elapsed
than the
of limitation had
[the
deed’s]
since its
execution when this suit
appears prima
commenced,
thus it
facie
plaintiff
guilty
such as will bar the
laches,
suit,
delay
unless excuse for the
is shown.” 56
atOr
allegations
complaint
It was then held that the
*10
adequate
failed to
an
state
excuse and, therefore, the
suit was barred as to the 1883 deed. That
all
is
that
question.
analysis
held
court
on this
See
Valley
City
Warner
in
ease
Pendleton v. Holman,
supra,
When, 1918, the court in therefore, 15 after applicable the statutes of limitation ceased to be to the Valley Oregon the Warner state, cited case in State Hyde, supra, following v. to the statement: “We are principle that the committed to the doctrine of laches applicable upon is to the state”: at it rested 40, proposition an insecure foundation. To buttress the cited two authorities. court other One was United (CC 1883), White, States v. 17 Fed D 561, 565 Cal, patent govern- suit States cancel United ground holding ment lands on the of fraud. The in government that United States was sub- case, contrary ject long defense of laches, to the line Supreme Court of the of cases decidеd United
331 will hereinafter referred to. some of which be States, v. Commonwealth Phila was authority The other B. M. Turnpike Co., B. & Pa 25 delphia, 47, 153 St cited in the foot A 1105. As from the cases appears Pennsylvania 34, 114, *11 Hyde re (and case expressed The views 541. Trust & Co. School ex rel Sec. Sav. in
peated on at their 9, No. appear District 287) supra, and, again, govern all-encompassing face to be was not dis question nongovernmental versus mental considered. or, apparently, cussed in this of authority country iveight great
By gov- the defense of laches not available by state or in a suit it to ernment, national, enforce public right protect public or State v. interest, Vin- supra; Equity § cent, 30A CJS Such suit, by Supreme it is held of the Court United States, government’s right is one to establish the title or to, public in, California, lands. United States v. 332 US presented ques- L 19, 67 S ed Ct tion whether the United States California owns the submerged lands off the coast California between mark and low water the three-mile limit. The state up among government set defense, others, enforcing rights by prin- was barred from reason of ciples estoppel possession. similar to or adverse laches, rejecting In the court this contention said: *
“* * assuming And even that Government agencies negligent failing recog- been have nize at or assert the claims of Government great earlier interests of the date, the Government in this area are not to be forfeited a re- ocean The which holds its sult. interests Government, people, here for all the as elsewhere trust is not by deprived ordinary to be interests those designed particularly private court rules dis- individually putes pieces property; over owned authority dispose and of Government who have no at all officers by property сannot their conduct rights cause the to lose its valuable Government acquiescence, their or failure to act.” laches, at 39-40. US principle that lands of the United States are government trust and that the is there-
held negligence estopped fore not of its officers to lands has been its title to such stated numer- assert Supreme ous other eases Court United Francisco, States San States: United US
333
L
749,
60 S Ct
84
ed
v.
32,
1050;
States,
Utah United
534,
284 US
52 S Ct
76 L
545-546,
ed
Utah
232,
469;
Light
Power &
States,
Co. v. United
We are thus determination question Oregon, holding whether the State of dealing underlying navigable with the lands waters governmental within its boundaries, so its does merely proprietary capacity. in a These lands were granted away by during never the United States period government, of territorial but were “held as a purpose being ultimately whole for the administered by and dealt with for the benefit the State” after completely it organized should “have become a com munity.” Shively Bowlby, v. 50, 152 US 14 1, S Ct affirming Bowlby Shively, L ed 548, 38 331, v. 22 Or Oregon P 410, 30 154. When, therefore, was admitted acquired submerged into the Union, title lands by grant not from the United but States, virtue of sovereignty. Taney As stated Chief Justice Martin Waddell, 16 Peters 41 367, 410, US 234, place, L people ed “when the revolution took 997, sovereign; of each state became themselves right navigable character hold absolute to all their and the soils under waters, for their own them, com subject only rights mon since use, surrendered general government.” the constitution to the This true of the thereafter likewise states admitted into equal footing” original “an with Union on thir Bowlby Shively, supra, teen. See Or at 417. It explained noted here as this court that, should be Shively speaking there of case, tidelands, sovereignty” “by phrase of its virtue is not to be taken right meaning grant that the state had no these away. Referring lands Warren, to Hinman v. and the in that court’s reliance on Pollard’s case Hagan al,
Lessee v.
et
3 Howard
US
L ed
Mr.
“The
Justice Lord said:
there
decision,
jus pri
is based on the idea that the state
fore,
has
*13
distinguishable
jus
vatum in the tide lands,
from the
publicum,
may
convey private
which it
as to
sell so
by
phrase,
interests
hence
its
therein;
the
virtue of
sovereignty,
preclude any private
was not intended to
by
grantee
use
which did not interfere with
the state’s
public
rights”
rights.”
“public
22
the
Or at 418. These
navigation
fishery
rights
are the
of
and
and the
authority
submerged
dispose
has no
of the
lands
rights.
in such a manner as to interfere with these
Accordingly,
said
Bros.
v.
we
in Winston
Co. State
regard
P2d with
Com.,
Tax
Or
62
underlying
navigable
waters
the state,
lands
“* * * although
passed
title
to the state
merely
rights
by
sovеreignty, its
were
virtue of its
ownership
public. In its
.
a trustee for the
those of
people,
represents
and the
the state
thereof,
people
ownership
sov-
their united
public
ereignty,
themselves remain
while
waters
naviga-
may
persons
the same for
use
so that all
and-fishing.
are
for
lands
held
trust
tion
These
**
fishery,
public
navigation
*.
and
uses
they
ju,ris;
publici
Being subject
in other
are
trust,
to this
they
use of
are held for the
words,
* * *”
large.
people
at
at
no
can make
that the state
concluded
was therefore
It
navigable
underlying
disposal
its
of the soil
sale or
public
prevent
such
the use
waters so as
fishing.
navigation
purposes
for
waters
Dabney,
has held that the lands nаvigable of the waters state are held the state people in trust for the benefit of the whole of the citing state,” the Winston Bros. case. concept jus aof twofold interest of the state —
publicum
jus privatum
the tidelands and the
—in
navigable
underlying
lands
waters derives from
prerogative
the ancient
Gould on
Crown,
Waters
(3d edj §
submerged
17. So far as
relates to the
lands the doctrine seems to have
abandoned
been
Bros,
quoted.
what was said in the Winston
above
case,
ownership
“In
repre-
thereof” we said “the state
people,
ownership
sents the
and the
is that of the
people
sovereignty,
in their united
while
waters
persons
themselves remain
so that all
use
navigation
fishing.”
the same
lying ordinary high water mark between the and navigable the low water mark of all af- streams by tide the and flow of the which fected ebb are acquired within borders. It these located its lands capacity proprietary and the in its became absolute dispose and of them and entitled to sell of owner and, seen, them it fit as we have the lands as saw high bordering upon river the Willamette below granted mark low water mark were water and above adjacent the the of land. At the same owners to time, that the this state was admitted into Union acquired proprietary capacity in a but title, not sovеreign capacity, say its is to trustee . navigable public, for to the all of the bed of streams dis- Within its borders. These it could not sell or right any pose grant orof the to make use of them impair impede navigation. It could which would grant right and of land did to owners lying above the low water mark to extend wharves navigable parts low mark and the water between wholly . in aid commerce of the but this of river, loading unloading and to afford access cargoes, transportation passengers, articles of commerce. and other every must obvious one that no “Now, it be to acquire possession person to title adverse could ' any submerged lying between the low water land navigable navigable waters, river and the mark of acquire do would be to title adverse for to possession so plaintiff’s Hence, the state. pоsses- acquired has title adverse that he claim part river bed of the Willamette sion fronting lying mark and on the low water below Security Savings property and Trust right navigate company The these untenable. every right privilege one and the is the waters all exclusive in no one. is common “* * * The title to [*] # [*] *. soil [*] underlying itself, the river to the bed of vested that is water, sovereign by held and is in the state capacity and the for the adverse as trustee long person no however continued possession at 560-561, title.” 131 Or it of its can divest holding apply equally for this adduced reasons employed as a clefense that laches claim *15 ejectment. of action state’s legislative with the treat- accords conclusion This
337 Except navigable for. .of the beds of rivers. ment stat 1876, › to be utes: enacted 1874 limited lands Legislature higli water marks,, tween. low аnd .has part-with to until never, 1963, authorized;the McVey, supra, 168 to its river beds. State title See Or at 347.. Legislature
In -Land 1920 the authorized Board, navigable pur- to the beds rivers lease of pose removing-gravel, therefrom, of rock sand paid net-proceeds over to irre- of such leases -to Oregon-Laws ch This 32. ducible .school fund: material, amendments not-now is. still statute, with 274.530. It was we-said enacted, effect: ORS Olcott, & Or 253, 261, in Salem Sand Gravel Co. the state in its P “for the use and benefit of sovereign capacity.” provision for the sale
As stated, made navigable tidal non- the beds of rivers, of both (5); express opin- no. tidal: 274.005 274.915. We ORS validity According ion as to the of statute. this corporation allegations complaint and its -the taking gravel predecessors have been interest years disputed for 45 is, channel 1920,’ since During filing ejectment prior action. years private person acquired could have those no any portion River of the Willamette the bed
title ought by conveyance It not be held from the state. › These given in Pacific Elevator Co. v. were effect statutes By way Portland, P NS what 46 LRA concluding paragraph of the court said to be caveat seems opinion: conveying subjacent upon land the state “The restrictions generally navigable think, should, we rivers to the waters navigable waters, speaking, apply or below under to lands proper ordinary dis- mark, of a river as the bed or low-water Chicago tinguished Water- as in bank shore from its Or at 402. case.” 65 front *16 practical purposes, conveyance
that what is, a to corporation, accomplished negli- could' be gence public charged duty of the officers with the asserting rights. the state’s
In Land Lee, Board v. through P we Mr. said, Justice Harris, general rule a that statute limitation in- does not government upon legal clude'the is not “founded expressed tempus fiction in the maxim nullum occurrit regi” but that “sound reason for the rule found in necessary public policy the fact that as a matter of it is preserve public rights, property to revenues and injury negligence public and loss officers.” support Like the rule which unavail- reasons makes government against the in a able the defense of laches public right protect a in- or to suit enforce eject- state’s action in terest. that character is the Of complaint gives mag- idea of the ment. The here some nitude that interest. opinion that the court erred over-
We are of the ruling complaint. to the the demurrer argued thing It is remains to be said.
One other properly any demurrer was sustained event the cоmplaint allegations of the it admits because private over of the river flows that the channel effect change property avulsive of an as the result complaint though it to treat elected haveWe equitable under statute. The alle- answer were place in no such an gations would have referred to statutory conformity procedure with the but answer, just pleaded, separately as the issues made should equi- separately out when the tried would be them considered have, therefore, failed. We defense table legal purely ignore defensive matter in proper to only validity complaint and to determine equitable defense of laches. . and the suit with- decree is reversed dismissed corporation’s right plea prejudice to enter
out ejectment complaint in and to further state’s opinion. proceedings in action conformable to this specially concurring. DENECKE, J., only solely upon ground I that laches is concur party seeking equitable relief and a defense *17 eject- a of a defense to law action not available as ment. dissenting.
O’CONNELL, J.,
enjoin
eject
the state’s action of
Plaintiff’s suit to
resting
a defensive maneuver
is,
substance,
ment
theory
delay
bringing
upon
that the state’s
principal question
is,
laches.
action constitutes
can
the defense of laches
be asserted
whether
then,
ample authority
against
Oregon
There
the state.
general proposition that
elsewhere for the
as well as
laches is available
the state un
defense of
proper circumstances. ‹ Defendant
how
contends,
der
holding
attempt
the state was
in the cases so
that
evеr,
right
public
proprietary
ing
than a
a
rather
enforce
brings an action
right
when the state
to- en
and.that
right,
public
it
defendant contends
did in
a
force
‹ Thus
Oregon
Hyde,
1, 40,
757,
88 Or
P
v.
169
of
in State
prin
(1918),
are committed to the
court said:
“We
is
bringing ejectment appli not the'doctrine is action, (1936) Vincent, cable. State P2d 203 support and- other cases defendant’s contention that apply not laches does to the state when is enforc right. › ing public a Plaintiff concedes eases argues plaintiff present so hold. However, right only public proprie case does not involve but tаry right. having parties been drawn,
The battle line
so
argument'to
their
of whether
narrow
issue
then
bed of a
assertion of its interest
navi
state’s
gable
pro
of a
or of a
stream is the assertion
narrowly
right.
prietary
is even more
drawn
The issue
rights
plaintiff
right
such as the
concedes
because
fishing,
navigation,
of
of recreational use
various
right
public rights, but contends that the
are
kinds
dispose
navigable
the bed
stream
the state
proprietary right. fi
gravel
is a
therefrom
or the
satisfactory
that “no
now well established
test
It is
distinguishing governmental from
been devised for
has
Harper
proprietary
James,
functions.”
&
Torts
(1956).
pp.
As the
all
observe,
authors
§
1621-22
29.6,
government “are—or should be—
functions of
*18
immunity
government
public
The
of
benefit.”
the
for
by attempting
determined then
be
should not
from suit
categories,
gov-
two
whether
one of
case into
to fit the
pub-
public-private,
jus
ernmental-proprietary,
necessary
licum-jus privatum.
it is
to ascer-
Rather,
public on one
interest of the
hand
the
case
in each
tain
person asserting a claim
of the
interest
and the
weighing
interests
these
de-
after
and
other,
the
on
it
› See
Moore,
(1950).
ernment subject same fairness rules of not should engaging apply to others such courts that the inquiry problem dealings. is: To that invites engages government in activities extent counterpart, why private should have which fl govern is not difficult where the choice cases In those policy function. mental-proprietary rubric serve intended present guidance, however, where gives cases like the one It no private balancing public and a more subtle involves choice interests. (cid:176) The provided for, e.g., in power land is to sell 274.040, 274.&15. 273.420, and ORS ORS ORS
342
government
principle
a
be immune from
of fairness
developed
guide
that has been
the determination
private parties'?”
of issues between
controversy
present
real
In the
case the
is over the
gravel
right
question,
type
in
the channel in
a
property which
dealt with
the state in
property
by private
is dealt with
same manner as such
given pref-
persons. Therefore the state
not be
.should
disposition
and the
of this case
treatment,
erential
“principle
fair-
controlled
the same
should be
applicable
litigation
in
between
that would be
ness”
applicable
parties.
private
The doctrine of laches
private parties
applied
litigation
should
between
proper
in the
circumstances.
to the state
I
that there are such circumstances
believe
plaintiff’s
present
state demurred to
Since the
case.
complaint,
relevant to the defense of laches
the facts
complaint.
garnered
The recitation
must be
complaint
plaintiff’s
can
be read to
the facts
asserting
plaintiff
had
basis for
claim
mean that
ground
question
that an avul
on the
channel
occurred;
the river had
movement of
sive
early
plaintiff
knew that
and its
as 1933
state as
ownership
claiming private
predecessor
were
expended
large
plaintiff has
sum
channel;
plant;
money
and that due
of its
in the construction
delay
bringing
the evidence estab
suit
to the state’s
longer
lishing plaintiff’s claim is no
available. These
the defense of laches. –
to establish
are sufficient
facts
disposed
subsidiary problem
of.
remáins to be
A
–
713,
Whitney
Fox,
637,
L
17 Ct
41
Ed 1145
166 US
S
v.
See
Ordway,
L
(1897);
15 S Ct
39
Ed
158 US
Abraham
Railroad,
Mansfield,
(1895);
Coldwater Etc.
Foster v.
McCann,
(1892);
L Ed 899
Denison
Ct
US
13 S
argued plaintiff
It is
must lose because the state can
*20
not be sued without its consent. Plaintiff’s
viewed
suit,
apart
ejectment,
action
the state’s
of
would be
by
proscription.
plaintiff’s
barred
that
But
suit is
not to be
a defensive maneuver
considered;
so
necessary
ejectment
by the
action. Plain
made
state’s
essentially
posture
tiff
defendant are
the same
parties
Shinkle,
the
were in State v.
here as
(1962), excеpt that in the
“(2) In action at law where defendant is arising requiring out entitled to of facts relief, interposition his without equity, of a court material up he necessity suсh matter answer, set
defense, complaint filing on the ** equity (Emphasis court; side 'the added.) legislature language It from this seems clear equitable prohibit-the raising of an did not intend to party so. cross if a chooses to do bill, defense *21 (1919) P 368 so Churchill v. Meade, 92 Or the holds. There court said: language new that the “It will be noted mandatory. permissive It is and not
enactment allows but does interpose compel litigant not the to' equitable con- at defenses. -This the action law apparent the read that when struction is when we pro- equitable interposed the case matter is shall equitable equity issues until the as a suit in ceed are not is this statute The effect of determined. giving change operation a of the old rule to try party at law and, out defenses an election to his urge grounds equitable his if unsuccessful, by figure by proper a It said a suit. be relief opens into a new speech door statute that the chancery through before, law- whereas courts, entry in that suit been a direct must have with is a matter of election before, As forum. equitable litigant initiate his he shall whether . original suit.”' 92 an in the law action defense Or at 632-33. Hopka P 342 Forbes, v. Later, filing (1931), that “The cross- states court interposing action, a law- a defendant bill longer permis no equitable action, defense to. of Churchill No mention is made under our codé.” sible explain attempt supra, made and no Meade, already language I have as which, of the statute mandatory permissive rather than is cast indicated, Hopka court in seems obvious terms. It carefully supra, the matter not consider did Forbes, controlling treat it as I would not and for that reason now. † upon us of laches in the thаt the defense hold
We should
raised-by plaintiff’s
properly
present
suit
case was
ejectment.
enjoin
action of
the state’s
† It
raising
party
equitable
defense
has been said
seeking
equitable
separate
must also
affirmative
relief
in.
suit
restraining
injunction
the action at
See
law.
in addition to
(5th
1941).
Jurisprudence
Pomeroy, Equity
1369 at 990
Ed
I
§
requirement
adopt
I
not
it. Pome
for this
do
see no reason
supra,
suggested
pure
rejects
de
roy,
distinction
between a
However,
even
affirmative
relief.
and one which also seeks
fense
adopted,
prayer
plaintiff’s
requirement
com
were.
if-the
request
quieted
plaint
title be
could be construed
“wholly
regarded
though plaintiff
its action as
defensive.”
notes
30A CJS
Equity §
this question.
are in a decided minority upon
decisions
that
court holds
Pennsylvania
in a governmental
laches even when it аcts
barred by
v.
Stahl
in a recent
decision,
For
example,
capacity.
Co.,
Pa. Bank. & Trust
Pa
191 A2d
First
121,
St
it was held that laches
an escheat
proceeding,
contrary
available
the state. This
ruling
Vincent,
State v.
decision
also
supra,
to our
escheat case.
in Warner
to justify
Valley
there
anything
Nor is
for the
that
proposition
the conclusion
stands
its
administering
Oregon
holding
the State of
ca
acts in a purely nongovernmental
lands
decision has been stated and
The basis of the
pacity.
counsel or the
the briefs of
there is no suggestion
was even con
question
court
this
opinion
it should have
why
no reason
indeed,
There is,
sidered.
limitation
effect at that time
statute of
for the
been,
all
activities, governmental
state in
applied
Hutchinson,