This article was published on: 08/12/12 12:00 AM
Question of riverbed ownership impacts dredging plans
By Hillary Borrud and Dylan J. Darling / The Bulletin
Bruce McKay says his favorite beer is Deschutes Brewery’s Mirror Pond Pale Ale. While that’s not surprising, McKay’s claim to the ale’s namesake is.
McKay and his siblings are the grandchildren of Clyde McKay, one of the early landowners who shaped the development of Bend after moving to the town in 1911. When land along the river was divided into lots, Clyde kept the land under the Deschutes River, the family story goes.
However, the story passed down by the McKay family is difficult to substantiate on paper.
The question of who if anyone owns the land under Mirror Pond arose during the past decade, as community members and officials from the city and the Bend Park & Recreation District discussed whether to dredge the silt that has accumulated in the pond. According to experts, Mirror Pond is at risk of turning into a wetland.
Officials expect that dredging the pond would cost $2 million to $5 million. They would also need permission to dredge from anyone who owns land under Mirror Pond. At a meeting of the Mirror Pond Steering Committee on Monday, members including officials from the city and park district discussed whether one of the government agencies should buy the land from the McKay family.
Bill Smith, a member of the committee who is also the developer of the Old Mill District, paid for a title search and told committee members the McKay family owns 90 percent of the land under Mirror Pond, Bend Director of Community Development Mel Oberst said.
Smith did not provide a copy of the results to the city, which has not conducted its own research on ownership of the pond.
Oberst said Smith’s title search is the only evidence he’s seen suggesting the bottom of the pond belongs to the McKays. “The city has no records,” Oberst said.
Smith wrote in an email that he does not have copies of the deeds.
A search of Deschutes County Assessor’s records turned up no evidence that the McKay family owns or pays taxes on land under the Deschutes River.
Questions about who owns Mirror Pond are also connected to a broader debate in Oregon over who owns rivers. A 2010 bill that would have clear usage rights was not approved, and instead a task force was formed and continues to examine the issue.
Silt: an old problem
For nearly two years, the Mirror Pond Steering Committee has been meeting to address silt building up in the pond along the Deschutes River in downtown Bend. The committee has discussed leaving the pond alone, dredging the pond, and removing the dam, although members have focused on the dredging option. The Mirror Pond Management Board, an even broader group, has been discussing the same topic for three years, and the city has contemplated dredging the pond since at least 2003, said Tom Hickmann, the city’s engineer and assistant public works director.
The city last dredged Mirror Pond to remove silt buildup in 1984. Hickmann said he did not know why ownership of land under the pond was not an issue in the 1980s. However, environmental regulations have made dredging more complicated over time. Liability issues, such as who must clean up any toxic substances that might be unearthed beneath the mud, are now a hurdle to dredging.
“Today, if there were trace elements of heavy metals or those kinds of things that are now required to be evaluated when you dredge, who would deal with that is a bigger issue,” Hickmann said.
Family claims ownership
The McKay family traces ownership of the land under Mirror Pond back to 1911, when Clyde McKay and his business partners formed the Bend Company.
“It’s been in the family for a long time,” said Bruce McKay, 60, who is a jewelry designer in Portland.
Clyde McKay came to Bend from Minnesota in the early 1900s, and helped transform the timber industry from a small local concern into a supplier of lumber to states across the West, according to documents at the Deschutes County Historical Society.
After the Bend Company formed, it purchased all but 10 acres of the land held by Alexander Drake, another major player in the building of Bend, said Bruce McKay. The Bend Company owned 3,000 acres of timberland, 2,000 acres of agricultural land, 1,400 acres of land next to the town, 1,300 platted lots in the town, a sawmill, the power and lighting plants, the city water system and various resource rights, according to a 1992 article in the Central Oregon Business Journal.
The Bend Company operated a mill where Columbia Park is today. The mill burned down in 1915, so Clyde McKay decided to shift his business interests to real estate, Bruce McKay said.
While most riverfront property lot lines in those days stretched to the middle of the river, Clyde McKay cut them off at the bank and kept the property under the pond, Bruce McKay said. Decades later, Clyde McKay’s businesses floundered in the Great Depression, but he was able to keep the pond property and pass it on to his family.
Bruce McKay said it became a family joke. “We ended up with a bunch of mud under the river,” he said.
A family trust, with seven trustees, now owns about 90 percent of the land under Mirror Pond, Bruce McKay said. McKay said he was the only trustee willing or able to talk to The Bulletin last week.
As to the question of how to handle the silt buildup in the pond, Bruce McKay said he has no opinion.
Although the Mirror Pond Steering Committee is discussing whether the city or the park district should buy the land under Mirror Pond from the McKay family, Oberst, the city’s director of community development, said he was not sure if the city or district would want to own it. And it’s unclear whether the family would sell it.
Bruce McKay did not answer the question of whether the family would be interested in selling the property, only saying that “it’s something that has been in the family a long time.”
The Bend Company and the McKay family sold land around Mirror Pond to the city in the past. In 1921, the Women’s Civic Improvement League gathered signatures to lobby the City Council to purchase land for Drake Park from the Bend Company. Voters then approved a bond measure that raised $21,000 to purchase 10.5 acres for the park, according to a document at the Deschutes County Historical Society. In 1982, the Bend Foundation purchased another piece of property on the east bank of the Deschutes River from a daughter-in-law of Clyde McKay for $350,000. The foundation donated the land to the park district, which used it to expand Drake Park, The Bulletin reported.
Privately owned
For the boaters who paddle around Mirror Pond, it may come as a surprise that the landmark could be privately owned.
State laws allow the public to wade, swim and float on rivers around Oregon, but that doesn’t mean the land underneath the water belongs to the public, said Julie Curtis, spokeswoman for the Oregon Department of State Lands.
The land is only publicly owned if the river has been determined to be navigable, via a study or declaration, or where tides influence the river, according to the department’s website.
That means it is possible private parties own the bottom of the Deschutes, although the department has no record of a private owner.
Rick Allen, chairman of the Oregon State Marine Board, was involved in the process of designating the John Day River as a navigable waterway. Members of the community could initiate the same process to gain public ownership of the section of the Deschutes River that includes Mirror Pond, Allen said.
“It’s a long process, but the bar to have it declared navigable is normally not that difficult to make,” Allen said.
Mapping river ownership
In April, the Deschutes County Clerk’s Office recorded a deed transferring property in downtown Bend from Bruce McKay’s mother to the trust that includes Bruce and his siblings. This included but was “not limited to the property submersed beneath the Deschutes River,” according to the deed.
With such a vague legal description, it is difficult to search for prior records of the McKay family’s ownership of land under the river. The county’s chief cartographer, Greg Bates, said the McKay family would need more than this deed to prove ownership if they want the county to generate a tax lot for the property.
“Somebody would have to produce possibly a title report or something equivalent to that to show they do indeed own it,” Bates said. “That deed that was recorded, there’s nothing to back it up.”
Ownership questions such as this might be part of the reason the county never drew tax lots for land people owned under the rivers.
“They probably didn’t know who owned it,” Bates said. “We have just not made any effort to do anything different than what was already decided.”
— Reporters: 541-617-7829, hborrud@bendbulletin.com,
541-617-7812, ddarling@bendbulletin.com