A title company asked to verify the claims of a family that purports to own the land beneath Mirror Pond said this week it cannot do so.
For the last year, officials have said the land beneath the pond belongs to the heirs of Clyde McKay, who moved to Bend in 1911 and shaped development of the town. According to the family story, McKay kept the land under the Deschutes River, when property along the river was divided into lots.
However, the story has proved difficult to substantiate the more people look into it. 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. The Bend Park & Recreation District and the city of Bend have not obtained deeds or other documents to back up the McKay family’s ownership claims.
The Bulletin asked AmeriTitle to prepare a title report on land under Mirror Pond. On Thursday, Chuck Sheffield, a vice president of AmeriTitle, said the company could not provide a clear record of ownership.
“I don’t think we probably can produce anything for you that would be meaningful, given that it’s a body of water,” Sheffield said. “The ownership of the land under the body of water presents complex legal issues. I think any report that we were able to produce would likely say in the end it would take court interpretation to determine ownership under the pond.”
Sheffield said he was not familiar with details of AmeriTitle’s earlier research on Mirror Pond for Bill Smith, the developer of the Old Mill District and a member of the Mirror Pond Steering Committee.
The steering committee is taking a lead role in determining what should be done to address siltation in Mirror Pond. Last year, Smith asked a title company to research pond ownership, and he reported back to other committee members that the McKay family owns 90 percent of the land under Mirror Pond.
Several of the possibilities being considered by the steering committee — dredging Mirror Pond and using sediment to build out the river banks, removing the dam that created the pond, and other options — could create or uncover more dry land along the river, bringing the McKay family’s claim to the forefront.
“I think long term, it would be nice if it were in public ownership, so that’s something we probably need to talk to (the owners) about,” park district director Don Horton said recently. “It’s certainly used as a public resource and has been for 100 years.”
The park district board is scheduled to meet with the City Council on Tuesday, and Horton said they will spend part of the meeting behind closed doors, talking about pond ownership.
Horton recently met with AmeriTitle staff who researched pond ownership for Smith, and Horton said the company has a pile of documents several inches thick that support the McKay family’s claim to the land. The meeting cast some doubt on the validity of the family’s claim, Horton said.
“We’ve asked (an AmeriTitle employee), would he be willing to provide title insurance if we were to buy the property,” Horton said Thursday. The company was unsure it could provide title insurance, Horton said, and “if they’re not willing to provide title insurance, to me it just raises a question about ownership. Usually, when you buy a property, you can get title insurance.”
Bruce McKay, grandson of Clyde McKay, contends his family’s claim to the land is valid. McKay spoke with The Bulletin last year, but could not be reached for comment Thursday.
As for whether the McKay family would be willing to sell the land to the park district, “We haven’t looked into that in any detail,” Horton said.
The district bought submerged land as part of the acquisition for Miller’s Landing park, near Colorado Avenue. However, the property valuation in these cases focuses on how much the dry land is worth, Horton said.
“This one would be very unusual,” Horton said of a possible purchase of land under Mirror Pond. “If we were to go in and buy it, it would all be land under the water. How do you value that? We’ll have to have it appraised.”
“If the preferred alternative creates high and dry land on their property, then (the McKay family) could see it would have a higher value,” Horton said. “If we acquire it, we want to acquire it as land under the water.”
Horton said there is no incentive for the McKay family to provide proof that it owns the land under Mirror Pond.
“There’s nothing for them to gain,” Horton said. “They’ll just sit there and let it grow up.”
Source: The Bulletin ©2013