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Brewer v. Department of Fish and Wildlife5/10/2000
f maintenance and operation of the dam. Plaintiffs argue on appeal that only one entity owns the land on which the accident occurred and that the others therefore cannot be deemed to fall within the immunity provided by the Act. Plaintiffs argue that, based on its allegations, neither ODFW nor Swackhammer is an "owner" and thus does not qualify for immunity under the Act.
ORS 105.682(1) provides:
"Except as provided by subsection (2) of this section [pertaining to intentional injuries], and subject to the provisions of ORS 105.688 [limiting immunity to those who do not charge for use of the land or who charge no more than $20 per cord for woodcutting on the land], an owner of land is not liable in contract or tort for any personal injury , death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products."
"Owner" is defined by ORS 105.672(4) as "the possessor of any interest in any land, including but not limited to possession of a fee title. 'Owner' includes a tenant, lessee, occupant or other person in possession of the land." "Land" is defined by ORS 105.672(3) as including "all real property, whether publicly or privately owned." ORS 105.688(1)(b) and (c) make ORS 105.682(1) applicable to all "bodies of water, watercourses, * * * fixtures and structures" and all "machinery or equipment" on the land in question.
Although "real property" as used in the "land" definition found in ORS 105.672(3) is not defined by statute, its common meaning would include fixtures such as dams. Real property is defined as: "Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land." Black's Law Dictionary, 1234 (7th ed 1999). That definition comports with the declaration in ORS 105.688 indicating that the immunities provided by ORS 105.682 extend to fixtures such as a dam. We conclude that the Act applies to the dam and the waters below it.
The question, then, is whether ODFW and Swackhammer fall within the definition of "owner." ORS 105.672(4). Plaintiffs alleged in their complaint that ODFW and Swackhammer both maintain and operate the dam. In order for plaintiffs to prevail on this point, we would have to conclude that one who maintains and operates a fixture on land is not an "occupant, or other person in possession of the land" under the definition provided in ORS 105.672(4). Although we have not construed the current version of the definition of "owner" in ORS 105.672(4), our interpretation of a very similar definition in an earlier version of the Act is informative. In Denton v. L. W. Vail Co., 23 Or App 28, 30-31, 541 P2d 511 (1975), the plaintiff was injured while riding a motorcycle on a closed stretch of road that was owned by the federal government but was under construction by the Oregon Department of Transportation and its contractors. Under an earlier definition of "owner" found in the Act, we concluded that "the contractors and the Department of Transportation were persons in possession of the land." Id. at 37. Although the scope of
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