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City ordered to remove well from property.

Byline: Karen McCowan The Register-Guard

ALBANY - A Linn County Circuit Court judge on Wednesday ordered Harrisburg to dismantle a well it mistakenly drilled on private property in 1996, rejecting the city's claim that it had come to own the well site under the state's "adverse possession" law.

City Administrator Bruce Cleeton, City Attorney Andrew Noonan and Mayor Bobby Duncan could not be reached for comment Wednesday on how loss of the well would affect Harrisburg's water supply. Known as Well No. 5, it is the city's most prolific source of drinking water, producing up to 400 gallons per minute.

In a trial Wednesday before Judge John McCormick, Noonan had argued a new twist on an old adage - 10 years' possession is nine-tenths of the law.

The city filed its claim last year for a 25-foot-by-50-foot patch of land next to city property where officials had intended to drill a new well during a mid-1990s water shortage. Harrisburg acknowledged last year that it accidently sunk the well and built a fenced pump house on nearby property owned by Washington retiree Ellen Leigh.

Cleeton said last spring that he and other current city officials learned about the mistake in early 2007, when Leigh's real estate agent visited her property in preparation for a possible sale. The city acknowledged its error and offered Leigh $10,000 for the 0.4-acre, landlocked site. The Linn County assessor's office lists the real market value of the entire parcel as $500.

Instead, Leigh proposed a $200 per month lease agreement, retroactive to 1996. The city rejected that deal, which would have cost Harrisburg more than $20,000 in back rent alone, and filed its claim instead.

Noonan told McCormick that the misplaced well was "a pure mistake" by Harrisburg officials at the time, but that the city had since established a right to the site because of its "open and notorious possession" of the land since 1996. State law allows for such claims in cases where such possession has gone unchallenged for at least 10 years.

"This is clearly visible," Noonan said. "You can see the well head and fencing on the site from Google Earth" (satellite photography).

But Leigh's attorney, Joseph Nash, argued that Oregon lawmakers deliberately set a high bar when crafting the state's adverse possession law.

"They wanted a statute that prevented legalized theft through adverse possession," he said.

Among conditions of the Oregon law, he said, is a requirement that parties seeking adverse possession "prove an honest belief" that they owned the land in question throughout the 10-year period.

In asking McCormick to "dismiss the city's claim and eject them from the property," Nash cited city documents showing that some Harrisburg officials questioned as long ago as 1996 whether the well had been sunk on someone else's land.

Among them was the city's 1996 "as built" drawings of the project, which clearly showed that the well was located on a tax lot owned by Leigh.

Nash also pointed to an Aug. 30, 1996, letter from then-City Administrator Danny Eckles asking the project's contract engineer, Howard Kraus, to verify that the well had actually been drilled on the city-owned lot. Finally, Nash cited a Sept. 17, 1996, response from Kraus saying only that the well's location had been "confusing" and that former City Engineer Ray Walters was "supposed to survey" the well site.

Walters, who served as Harrisburg's city engineer for more than 30 years, testifiedWednesday. He said he had been in the process of retiring during the 1996 well project, and had asked a survey crew to verify the site. He never saw a report from them, Walters said, and "assumed the documents had been filed with the city."

Eckles also testified, saying he wrote his letter to Kraus after at least some members of the city's public works committee raised concerns about the well's location on the "as built" drawings. Eckles, now retired, said he could not recall anyone pursuing the matter after receiving the reply from Kraus.

Noonan argued that Harrisburg officials must have believed the well was on city land, because they could have used the city's powers of eminent domain to condemn and force the sale of the well site.

But McCormick sided with Leigh, swiftly rejecting the city's claim and instructing the two sides to work together on a timeline for removing the well.

Leigh, who attended the trial, said she has no particular plans for the land, but fought on principle the city's efforts to claim it.

"I don't think that was right," she said.
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Title Annotation:Government Local; Harrisburg mistakenly drilled a major drinking water source on private land
Publication:The Register-Guard (Eugene, OR)
Date:Jun 19, 2008
Words:759
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