FILED: July 17, 2002

STATE OF OREGON,
acting by and through its
Division of State Lands and State Land Board,

Respondent,

v.

BRUCE NORRIS
and VERONICA P. NORRIS,

Appellants.

Appeal from Circuit Court, Columbia County.

Ted E. Grove, Judge.

Argued and submitted August 24, 2000.

Paul Eberhardt argued the cause for appellants. With him on the opening brief was Smith, Freed, Heald & Chock, P.C. With him on the reply brief was Smith, Freed, Chock & Eberhard, P.C.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief was Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Haselton, Presiding Judge, and Deits, Chief Judge, and Warren, Senior Judge.

DEITS, C. J.

Affirmed.

DEITS, C. J.

Defendants, Bruce and Veronica Norris, appeal from the trial court's judgment granting plaintiff's (1) request for injunctive and declaratory relief concerning defendants' use of submerged and submersible lands (2) of the Columbia River. We review de novo, ORS 19.415(3), and affirm.

Defendants own property in Rainer, Oregon, that fronts the Columbia River. As a general matter, the state has title "to the submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person * * *." ORS 274.025(1). On appeal, defendants do not dispute that the state owns the submerged land in that portion of the river adjacent to defendants' property. Apparently, defendants own the property to the ordinary low-water line. Defendants, or their predecessors in interest, have erected various structures that project over the submerged and submersible lands. Those structures are presently being used for semi-permanent or permanent moorage for vessels and equipment and for storage of salvage materials and scrap metal. Defendant Bruce Norris was contacted in 1995 by DSL and was told that a lease was required for defendants' uses of the property pursuant to ORS 274.915. Defendants took the position that they were not required to execute a lease for their use of this land.

In 1997, DSL filed a complaint against defendants, alleging that they or their predecessors caused docks, piers, and other permanent structures to be constructed on property belonging to the state. The complaint alleges that the structures have been used as semi-permanent or permanent moorages for boats, for storage of salvage materials, and for commercial and residential purposes and also alleges that defendants have continued to use the property for these purposes despite repeated requests to either vacate the state lands or to obtain a lease from DSL. The complaint also alleges that defendants presently could not have obtained a lease for their use of the property because, under the existing circumstances, the structures "do not comply with applicable state statutes and administrative rules, and are not in compliance with federal and local standards, laws, and regulations which are applicable to them."

DSL's first claim for relief was labeled as one for "ejectment." In that claim, DSL requested a judgment ordering defendants to remove all structures and other property from the state's property. The second claim was labeled as one for "injunctive relief for nuisance." In that claim, DSL alleged that defendants' activities constituted an "unreasonable interference with public health and safety and a nuisance" and asserted entitlement to a mandatory injunction requiring defendants to remove all materials that overlie the state's property and to "remove so much of that material overlying [d]efendants' own submersible property which is a nuisance." DSL's third claim for relief was labeled as one for declaratory relief. DSL requested declarations regarding whether defendants were entitled to obtain a lease to continue to use the property and regarding the proper location of the boundary line between the state's and defendants' property. In sum, DSL prayed for the following relief:

"1) Requiring [d]efendants to immediately remove all structures which encroach upon or overlie the submerged or submersible property owned by the State of Oregon.

"2) Requiring [d]efendants to immediately remove all materials and structures which constitute a nuisance.

"3) Entering a declaratory judgment as set forth above."

Following trial, the court entered an order declaring the ordinary low-water line to be the permanent boundary between the state's and defendants' property and declaring that the location of the line is as described in a survey documented in Exhibit 61. The court also declared that the structure in question is not a "wharf" that is authorized by ORS 780.040 and reasoned that the structure and other stored items interfere with the public's use of the state's property. The court ordered that defendants remove all of their property except the Norris structure from the state's property within 90 days from the date of the judgment. Additionally, the court ordered defendants to remove all of the Norris structure that is located on the state's property within 180 days from the date of the judgment. It also ordered that defendants (or any other person or entity under defendants' control) not place or maintain any permanent structure or items of personal property on any state property anywhere in the state for longer than 14 days without prior written approval from the state. The order also required that the state's representatives be given access to the state's property through defendants' property in order to monitor and determine compliance with the court's order. Defendants appeal from the resulting judgment.

Defendants first assign error to the trial court's denial of their request for a jury trial. Defendants argue that, because DSL labeled its first claim as one for ejectment, which is a legal claim, they were entitled to a jury trial. DSL takes the position that it took at trial, that all of the relief sought and obtained was "essentially equitable" and that there is no right to a jury trial in equitable proceedings. The trial court denied defendants' request, stating that there was no basis for a jury trial "and that the primary issue to be decided in this case is the location of the low[-]water line of the Columbia River * * *." The court reserved the right to call an "advisory jury" should a factual issue arise that would require a jury finding. However, a jury was not called.

Defendants are correct that a claim of ejectment states a claim at law. Corvallis Sand & Gravel v. Land Board, 250 Or 319, 324, 439 P2d 575 (1968). It is also true, however, that the label given to a claim does not determine whether the matter is at law or in equity. Lieuallen v. Heidenrich, 259 Or 333, 334-35, 485 P2d 1230 (1971). The critical inquiry in deciding if a matter is one at law or in equity is the relief sought. As explained by the Oregon Supreme Court:

"Whether a lawsuit is at law or in equity is sometimes a perplexing problem. The usual basis for distinction is the nature of the relief sought. With limited exceptions, a suit for an injunction is in equity because only equity gives injunctive relief. The statute limits equitable relief to 'cases where there is not a plain, adequate and complete remedy at law,' or 'where courts of equity have been used to exercise concurrent jurisdiction with courts of law.' ORS 11.020." Carey v. Hays, 243 Or 73, 77, 409 P2d 899 (1966) (footnote omitted); see also May v. Chicago Insurance Co., 260 Or 285, 291-92, 490 P2d 150 (1971) (reasoning that declaratory judgment proceedings will be treated as legal or equitable depending on their nature).

More recently, in McIntyre v. Photinos, 175 Or App 478, 28 P3d 1259 (2001), we reiterated the principle that the nature of the relief sought is the critical factor in deciding if a matter is one at law or in equity. In that case, neighboring landowners were involved in a dispute regarding the ownership of a strip of land. The plaintiff brought an action in ejectment and also asked for a declaration of her ownership, claiming that she had acquired title through adverse possession. The trial court did not issue a judgment of ejectment but declared that the plaintiff was entitled to ownership of the property. We held that, although the plaintiff had sought both equitable and legal relief, the judgment on appeal concerned an equitable matter.

DSL argues that the relief sought and awarded in this case is essentially equitable in nature. DSL first asserts that, notwithstanding the label of its first claim for relief as an ejectment action, its request for a declaration of the boundary line between its and defendants' land is based on "purpresture," an alleged encroachment on public rights by appropriation to private use, for which an equitable remedy is appropriate. In State Land Board v. Sause et al, 217 Or 52, 73-74, 342 P2d 803 (1959), the Supreme Court quoted the following statement from John M. Gould, Law of Waters ch 1,