Cereghino v. State By and Through State Highway Commission
| Decision Date | 18 April 1962 |
| Citation | 370 P.2d 694,230 Or. 439,74 Adv.Sh. 547 |
| Parties | Joseph CEREGHINO and Henrietta Cereghino, husband and wife; Angelo Cereghino and Leona Cereghino, husband and wife; Mario Cereghino; and Earl J. Campbell and Gertrude Campbell, husband and wife, Respondents, v. STATE of Oregon, by and through its STATE HIGHWAY COMMISSION composed of Kenneth N. Fridley, Glen W. Jackson and M. K. McIver, Appellant. S. B. HALL, by and through Frances C. Hall, the duly appointed, qualified and acting Executrix of the estate of S. B. Hall, deceased, and Berger Tonseth, Respondents, v. STATE of Oregon, by and through its STATE HIGHWA COMMISSION composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant. William E. TEGART, Jr., and Harriet B. Tegart, husband and wife, Respondents, v. STATE of Oregon, by and through its STATE HIGHWAY COMMISSION composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant. |
| Court | Oregon Supreme Court |
Charles Peterson, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and L. I. Lindas, Asst. Atty. Gen., Salem.
Carrell F. Bradley, Hillsboro, argued the cause for respondents. With him on the brief was George W. Mead, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.
The appeals in these cases were consolidated for hearing in this court because they involve identical questions.
The plaintiffs, owners of agricultural lands in Multnomah county, brought these actions against the state of Oregon, acting by and through its State Highway Commission, to recover damages for injury to their lands caused by the construction by the defendant of a state highway. The Cereghino case was tried by a jury which returned a verdict for the plaintiffs in the sum of $4,250, with interest at the rate of six per cent per annum from January 1, 1956. The Hall and Tegart cases were thereafter tried by the court without a jury under a stipulation that the court could consider the testimony in the Cereghino case in addition to such testimony as the parties might introduce. In these cases the court entered findings of fact and conclusions of law and a judgment in favor of the plaintiffs. The judgment in the Tegart case was for $3,500 and in the Hall case for $5,500, each carrying interest at the rate of six per cent per annum from January 1, 1956.
The defendant has appealed and the plaintiffs have cross-appealed.
The defendant assigns error to the refusal of the court to include in the judgments a provision granting it easements of flow over the lands involved. The testimony has not been brought to this court, but the pleadings and findings of fact and judgments enable us to determine whether the contention is well founded.
Except for the description of the land and the amounts of damages claimed, the complaints are in substantially identical language and it will suffice for our purposes to set forth the following portions of the amended complaint in the Tegart case:
'II
'That during all of the times herein mentioned, Plaintiffs owned the following described real property, to-wit:
[Description omitted]
'That said land is located immediately north of the Columbia River Highway in the easterly portion of Multnomah County, Oregon, and for many years last past and particularly in the year 1955 the property was highly developed, rich, agricultural land devoted to the use of farming.
'III
'That prior to the fall and winter of 1955 and 1956, the Defendant caused to be constructed a State Highway which lies to the south of Plaintiffs' property; that in and as a result of the construction of said highway, the Defendant caused large quantities of surface water to collect from adjoining areas and properties which lie south and above Plaintiffs' land; that during the winter of 1955-56 through the highway drainage and as a result of its construction, great bodies of water, mud, dirt and silt were cast upon approximately 8.7 acres of Plaintiffs' land, said 8.7 acres being more particularly hereinafter described, to-wit:
[Description omitted]
'IV
'That as a direct and proximate result of the facts hereinabove alleged, large quantities of top soil were washed from the Plaintiffs' said lands hereinabove described and the water cast upon Plaintiffs' said land greatly in excess of that which would normally flow across the same unless the drainage and highway system constructed by the Highway Commission had been installed and constructed.
'V
'That as a result of the facts above alleged, the cultivation of the Plaintiffs' land more particularly described in Paragraph III above has been made impossible and the Plaintiffs have been deprived of the full use and enjoyment thereof rendering the land less valuable to the Plaintiffs and the value of the entire tract of real property more particularly described in Paragraph II of Plaintiffs' complaint has been rendered less valuable and the Plaintiffs have been damaged in the sum of $7,500.00.'
The defendant in its answer admitted the construction of a state highway, as alleged, but otherwise denied all the allegations of the amended complaint.
These are not tort actions. If they were the judgments would not be sustainable, as the state has not consented to be sued for tort, except in cases not pertinent here. The plaintiffs are seeking to recover compensation for private property taken by the state for a public use. The defendant, it is true, denied the taking, but the verdict, findings, and judgment which are not challenged, except in the one particular above stated are conclusive of that issue. 1 Article I, Section 18 of the Oregon Constitution provides:
'Private property shall not be taken for public use * * * without just compensation * * *.'
Ordinarily, when the state takes private property for a public use and it cannot agree with the owner on the value of the property, it institutes a condemnation proceeding in which the amount of just compensation is determined and a judgment therefor entered in favor of the property owner. The Oregon State Highway Commission is authorized by statute to bring such proceedings for the purpose of acquiring 'real property, or any right or interest therein, including any easement or right of access, deemed necessary for: * * * highway drainage and drainage tunnels.' ORS 366.340. But where the state exercises its power of eminent domain without bringing an action to condemn, the owner of the property taken may himself go into court and sue to recover its value and certain damages; for to deny him this right would be to deprive him of the protection guaranteed by Article I, Section 18, of the state constitution. These principles, which are not questioned by any of the parties, are more elaborately stated in Tomasek v. Oregon Highway Comm., supra, note 1. See, also, Morrison v. Clackamas County, 141 Or. 564, 567, 18 P.2d 814. As the court said in United States v. Lynah, 188 U.S. 445, 465, 23 S.Ct. 349, 355, 47 L.Ed. 539:
The Fifth Amendment of the Constitution of the United States and Article I, Section 18, of the Oregon Constitution are identical in language and meaning. The word 'property' in these provisions is not 'used in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law,' but 'to denote the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it.' United States v. General Motors Corp., 323 U.S. 373, 377-378, 65 S.Ct. 357, 359, 89 L.Ed. 311, 156 A.L.R. 390. When the sovereign exercises the power of eminent domain 'it deals with what lawyers term the individual's 'interest' in the thing in question. That interest may comprise the group of rights for which the shorthand term is 'a fee simple' or it may be an interest known as an 'estate or tenancy for years', as in the present instance.' Ibid. See 1 Lewis, Eminent Domain (3d ed.) §§ 63, 64. Or it may be such a right as is involved in this case.
It was not, therefore, the 'physical thing', the topsoil, for example, washed away by the flooding of the plaintiffs' lands, which was 'taken' by the state, but the right or interest of the plaintiffs as thus defined. The judgments which have been entered are by way of compensation for the depreciation in the value of the plaintiffs' lands or, to put it another way, for the permanent injury to the lands which the court specially found. If there should be future floodings of these lands caused by the construction of the highway there could be no further recovery of damages by the plaintiffs. 'If the words are constructed with due care and skill they are not a nuisance, and the only remedy is one for compensation, and the damages must be recovered once for all.' 1 Lewis on Eminent Domain 93, § 80.
Both in the brief and on the oral argument these propositions were conceded by counsel for the plaintiffs. They say in their brief:
'Plaintiffs cannot, under the doctrine of res judicata, recover again for the taking that occurred as of January 1, 1956, or for a taking that results from the increased flow of water which occurs because of the change in the natural drainage system of surface water as a result of the Banfield construction.'
It is also stated in the brief:
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