HomeMy WebLinkAboutPublic and Private Aquatic Land Ownership - OT General - 3/30/2015 A
MEMORANDUM March 30,2015
To: Shannon Soto, Aquatic Land Manager
Shoreline Aquatic District
From: Steve Ivey, PLS, Aquatic Land Surveyor
Land Survey Unit, Engineering Division,
Phone 360-902-1379
Re: Public and Private aquatic land ownership interest at the Rest-A-While RV Park
located in Section 31, T23N, R3W, Mason County, WA
Recently you asked for an ownership investigation for the Rest-A-While RV Park located on
Hood Canal. In October 2013 the Kyowashin LLC and Rose Studios purchased the RV Park and
the owners are proposing a project to replace and repair the old docks and pilings. This property
was formerly under a DNR lease (20-009720)and there are concerns that a portion of the
proposed project may be located on state owned aquatic lands.
Introduction
In front of the RV Park, there is strip of state owned tidelands lying between the line of mean
high tide and the northwesterly boundary of the John Rea oyster tract sold by the State. The
ownership interest of the RV Park include a portion of the Rea oyster tract along with the
reversionary rights for their oyster lands. The previous owners of the RV Park never filed an
application to purchase the intervening second class tidelands (approximately 6 acres) lying
between the uplands and the oyster tract. All other land owners within Section 31, who owned
portions of the oyster tract, purchased the intervening second class tidelands from the State.
Beginning in 1956, the State began to lease the intervening state owned tidelands to the
owners/operators of the RV Park and the series of leases ran to June 5, 1993. Beginning in the
late 1980's,the lease applicant began to question the State's ownership with claims that they
were vested in title prior to statehood through a patent issued to their great-great grandfather
Calbein J. P. Sund. In 1989, Richard Hoss, the attorney for the owners Mr. and Mrs. Robert Sund
and Mr. and Mrs. Harold Wilson, sent a letter to the DNR that claimed his clients were vested by
a Homestead Claim on January 11, 1889 and he closed with"I find no records of the State of
Washington ownership of this real property."
After this point,the applicant no longer made rent payments to the DNR. I find notes that the
DNR examined the ownership dispute and an internal letter was prepared dated April 21, 1989
that supported the State's claim of ownership. In 1988, no further lease payments were collected
and when the lease expired in June 1993, the DNR closed the file for application no. 20-009720.
JARPA for Rest-A-While RV Park
Currentlythe RV Park has a JARPA and a Biological Evaluation for their proposed piling and
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float replacement project. For the DNR project review, there are 3 geographic areas at the RV
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Park that require investigation for ownership and lease considerations. There are common
elements between the three areas,but also there are differences in how each area is currently
used and differences in the claims of ownership. In 1994,the RV Park property was divided into
4 lots through Short Plat No. 2465 and in 2004 an Affidavit of Correction was recorded for the
short plat(see record of survey filed at Book 29 of Surveys at page 96).
Tidelands within Lot 4 of Short Plat 2465
The current uses within lot 4 include a dive shop(formerly used as a boathouse),a boat ramp,
various piling, floats and boat lift that were removed in 2010,two breakwaters,and remains of a
navigation channel. It is uncertain how much of lot 4 may include fill and a location for the
current line of mean high tide is unknown. Assuming the main building used for a dive shop is
above the line of mean high tide,I used the southeast face of the building to create an
approximation of the state owned tidelands within}lot 4. I estimate the state owned tidelands
lying southeast of the building and northwest of the Rea oyster tract is 0.8 acres.
Tidelands within Lots 1, 2, &3 of Short Plat 246.E
The current uses within lots 1, 2,and 3 include parking for recreational vehicles and trailers, a
long bulkhead,and a large beach that is used exclusively for oyster and clam harvesting by the
RV Park guest(see web page for Oyster Schedule). Assuming the face of the bulkhead is along
the line of mean high tide, I used the bulkhead to create an approximation of the state owned
tidelands within lots 1, 2,& 3. I estimate the state owned tidelands lying southeast of the
bulkhead and northwest of the Rea oyster tract is 5.0 acres.
Filled tidelands across lots 1, 2, &3of Short Plat 2465
The existing dive shop appears to be located on a portion of the uplands where the original
shoreline for this property included uplands with a bulb shape that extended offshore.According
to 1925 plans for former State Route 9(today SR101),this bulb was approximately 300 feet
wide(N-S)and extended offshore approximately 350 feet to the southeast. Lying northeast of the
uplands bulb,the highway plans show the roadway to cross tidelands,which required fill
material for the highway construction. In addition to the fill for the highway,the large area used
for RV parking that is supported by a long bulkhead appears to be fill placed on the state owned
tidelands.
I do not have sufficient information to locate the original line of mean high tide,but I estimate
lying south of the highway right of way and lying north of the bulkhead,the potential area of
filled state owned tidelands across the 3 lots is between 1 and 1.5 acres. For the State to approach
the current landowners with this add#ional ownership assertion by the State requires further
research to document the expansion of the RV Resort on to the tidelands by the placement of fill.
Within the lease file,I do not find letters or other communications that this potential ownership
dispute has been discussed.
Rest A While Resort ownership lease Memo(2) Page 2 of 5
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Ownership Issues for the DNR
Along with concerns and issues related to the DNR project review, the DNR has an additional
concern. The States ownership to the tidelands fronting on the RV Park were contested in 1988
and 1989, and the DNR did not defend the States ownership interest. I have researched the
claims by the landowners and I have obtained documentation that:
The current landowner claims to tidelands between the line of mean high tide and the
landward boundary of the Rea oyster tract is not valid because the patentee was not
vested until after statehood. Therefore the State of Washington continues to own the
intervening tidelands between mean high tide and the Rea oyster tract.
In Washington State we have the meander line principle where a party who is vested in title prior
to statehood are entitled to the benefits of the Disclaimer Clause that is found in Article 17,
Section 2 of the Washington Constitution. Under this principle, Washington has the generalized
rule that if the uplands abutting a navigable body of water were patented or vested by the United
States before statehood, that is November 11, 1889; the upland ownership extends to whichever
line is farther out,the line of ordinary high water or the government meander line. This rule is
based upon more than 80 years of Washington Supreme Court opinions.
The RV Park is located in a portion of government lots 2, 3, and 5 of Section 31 and under U.S.
application no. 10907,the federal patent to all lands within Section 31 were granted by the patent
dated August 21, 1896. The grant was to Calbein J. P. Sund under the Homestead Act of 1862
and the Act contained many provisions that must be met before the applicant could acquire title.
Under the Homestead Act of 1862, a valid claim to the lands free and clear required the applicant
to be:
I. an US citizen or intended citizen, who had never borne arms against the USA;
2. must file an application;
3. must reside on the property for the next 5 years, and improve the land with a home and
with growing crops;
4. after 5 years,the homesteader must testify residency on the land and the required
improvements were built.
I have retrieved copies of the Land Patent files from the US National Archives for application
no. 10907 and after reviewing the contents of the land patent file I conclude the patentee is NOT
ENTITLED to the benefit of the Disclaimer clause and the State own the intervening tidelands.
The facts used to support this conclusion are:
• Yes the fact by Mr. Hoss that Mr. Calbein J. P. Sund had filed a claim under the
Homestead Act of 1862 on January 11, 1889 is correct, but the application date does
represent the vesting date for title purposes.
• Mr. Sund was a native of Norway and the Act of 1862 required US citizenship to become
eligible for a patent and Mr. Sund became a naturalized citizen of the US on September 9,
1895.
Rest A While Resort ownership lease Memo(2) Page 3 of 5
• The payment of the required fees to complete the applicant process were paid April 8,
1896 according to the Final Receivers Receipt and the Final certificate file no. 849 was
also dated April 8, 1896,and at this point Mr. Sund became entitled(vested in title) to a
patent for the land, which is post statehood.
• Finally the land patent was issued by the US on August 21, 1896.
Sells of Aquatic Lands within Section 31
In front of the Rest A While Resort,the state sold an oyster tract(Tract 1)under the Bush Act
(Chapter 24, Laws of 1895)to John A. Rea by that deed dated Oct. 16, 1901. The legal
description and survey for the Tract 1 oyster tract specifically state the northwesterly boundary
(landward side of oyster tract)of the tract is abutting the meander line. (oyster tract deed Vol. 2
page 560 records of CPL). P-1 -�
Within Tract 1 of the Rea oyster tract,the State has sold the version ri for the entire
tract 1. For that portion of the oyster tract fronting on the RV Paz (central portion of oyster
tract),the reversionary rights were sold to M. D. and Claire Bearden by the deed dated Aug. 8,
1949(tideland deed Vol. 21 page 263,records of CPL). For the remaining portion of the oyster
tract lying northeast and southwest of the RV Park,the reversionary rights were sold to Starr and
Elma White by the deed dated May 3, 1948 (tideland deed Vol. 21 page 52,records of CPL).
The Kyowashin LLC and Rose Studios,Inc. are the current owners of the Resort and their title
include Lots 1, 2,3, and 4 of Short Plat no. 2465 and their warranty deed(AF2016369 records of
Mason County)include that part of the Rea oyster tract lying in front of the short plat and their
title include the reversionary rights(successor to Bearden)to that part of the Rea oyster tract
lying in front of the short plat,BUT their title DOES NOT include the intervening second
tidelands.
As a reminder,EXCEPT for in front of the RV Park,all land owners within Section 31,who
owned portions of the oyster tract,purchased the intervening second class tidelands from the
State. In 1943 M. D. Bearden and Claire Bearden purchased the RV Park property(including
uplands and portion of the Rea oyster tract) and in 1949 the Bearden couple purchased the
reversionary rights to their portion of the Rea oyster tract. So the couple was informed about the
purchase of aquatic lands from the State.
Previous DNR Lease Activity
For a complete listing of the lease activity and assignments for the RV Park, see the attached
Memorandum for Rest-A-While RV Park 19890421. Some key events during the lease activity
are:
Lease no. 2009 was issued to M.D. Bearden on June 5, 1956 with a 5 year term for the
tidelands between ordinary high tide and the meander line.
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Lease no. 7466 was issued to Claire Bearden on June 5, 1961 with a 10 year term for the
tidelands between ordinary high tide and the meander line and the lease was assigned to Rest
While Park, Inc. on June 15, 1966.
Lease No. 9720 was issued to Rest While Park, Inc. on June 5, 1971 for a 10 year term for the
tidelands between ordinary high tide and the meander line.
Exiting Surveys, Plats and Exhibits
As previously mentioned in this memorandum, in 1994 the RV Park property was divided into 4
lots through Short Plat No. 2465 and in 2004 an,affidavit of Correction was recorded for the
short plat(see record of survey filed at Book 29 of Surveys at page 96). The recorded short plat
results in a cloud on the title of the State and the short plat and any documents that reference the
short plat must be reformed and recorded to provide constructive notice to the Mason County
Assessor and to all title companies within Mason County. This action is required to prevent a
reoccurrence of this serious error and if the DNR does not address this error in the record,then
future conflict over the ownership interest of the State will occur again and the number of injured
parties will continue to grow.
Cc: Matt Goehring,Aquatic Resources Division
Neal cox,Aquatic District Manager
Attachments:
Exhibit for Rest-A-While RV Park
Rest-A-While RV Park web home page
Rest-A-While RV Park web Oyster Schedule
Record of Survey vol. 29,pg. 96(for Sho plat no. 2465)
Memorandum for Rest-A-While RV Park 9890421
060721-08113 (DOE oblique aerial photo)
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