Deupree v. ODOT

• Decision Date: 25 April 2001
• Citation: 173 Or. App. 623,22 P.3d 773
• Parties: Stanley W. DEUPREE, Trustee of the Philip W. Deupree Trust U.T.A.D. November 9, 1999, and Donald Grissom, Appellants, v. STATE of Oregon, acting by and through the DEPARTMENT OF TRANSPORTATION; Del Huntington, Russ Hopkins, Michael Arneson and John Vial, Respondents.
• Court: Oregon Court of Appeals

22 P.3d 773

173 Or. App. 623

Stanley W. DEUPREE, Trustee of the Philip W. Deupree Trust U.T.A.D. November 9, 1999, and Donald Grissom, Appellants, v. STATE of Oregon, acting by and through the DEPARTMENT OF TRANSPORTATION; Del Huntington, Russ Hopkins, Michael Arneson and John Vial, Respondents.

99-3085-E-2; CA A109725

Court of Appeals of Oregon.

Argued and Submitted March 5, 2001.

Decided April 25, 2001.

Robert E. Bluth, Medford, argued the cause for appellants. With him on the briefs was Bluth & Billin, P.C. David F. Coursen, Assistant Attorney General, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Plaintiffs appeal from a summary judgment and judgment on the pleadings in favor of defendants, who are the Oregon Department of Transportation (ODOT) and four ODOT employees. Plaintiffs contend that the trial court erred in dismissing their claims for inverse condemnation and violation of 42 USC § 1983 on the ground that the claims were not ripe and in dismissing their claim under ORS 105.755(2) for damages for loss of access to their property resulting from ODOT changing the grade of an abutting public highway. We affirm.

The material facts, for purposes of defendants' motions, are undisputed. Plaintiffs own real property in Eagle Point. The property is located on the east side and adjacent to State Highway 62 (the highway) near its intersection with Lynn Road. Lynn Road is a public road that provides indirect access to plaintiffs' property from the highway. From the 1960s until 1999, plaintiffs' property enjoyed direct access to the highway by permit at two locations. Plaintiffs also had access to the highway at two additional abutting locations, which were not subject to a permit.

In 1999, ODOT changed the grade of the highway abutting plaintiffs' property from a gradually sloping incline of three to four feet to a steeper incline of approximately eight feet in height. The change occurred as part of a highway widening project, including construction of a median strip, that limited direct access from abutting properties onto the highway. ODOT initiated an administrative proceeding to cancel plaintiffs' permits for direct access to the highway. It held a hearing and issued a final order cancelling the permits. Plaintiffs sought judicial review of that order in this court; the petition for review was pending when judgment was entered in this action.

Plaintiffs' complaint alleged three separate claims for damages: (1) a statutory claim for change of the highway grade, relying on ORS 105.755; (2) a claim for inverse condemnation under the United States and Oregon Constitutions; and (3) a claim under 42 USC § 1983. In each claim, plaintiffs alleged that defendants' conduct resulted in loss of highway access to their property and caused $1,000,000 in damage, consisting of diminished value of their property and loss of value of the businesses located on the property. Defendants moved for summary judgment and judgment on the pleadings with respect to each of those claims. The trial court granted both motions.¹

In dismissing plaintiffs' statutory change of grade claim, the trial court concluded that the claim was "really about access. Change of grade and access are different issues." The court reasoned that the exclusive remedy for challenging the denial of highway access was the administrative proceeding then pending on review. The court also dismissed the remaining claims, concluding that they were not ripe "until the administrative case is decided." On appeal from the ensuing judgment, plaintiffs challenge the dismissal of each of their claims.

In reviewing the trial court's summary judgment ruling, we view the record in the light most favorable to plaintiffs, the nonmoving parties, to determine if a genuine issue of material fact exists and if defendants are entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). In reviewing the court's decision to grant judgment on the pleadings, we view the complaint in the light most favorable to plaintiffs to determine whether the complaint, in its entirety, affirmatively shows that plaintiffs have stated no claim for relief. Wyatt v. Sweitz, 146 Or.App. 723, 725, 934 P.2d 544 (1997).

We begin with plaintiffs' statutory change of grade claim. ORS 105.755 provides, in part:

"(2) Whenever the Department of Transportation changes the grade of any public road from a previously established or maintained grade, the state shall be liable for and shall pay just and reasonable compensation for any legal damage or injury to real property abutting upon the public road affected by the grade change; except that the state shall not be liable for any damage or injury for any such change whenever the county has requested the Department of Transportation to make such change.

"* * * * *

"(4) The trial circuit court shall, in its final judgment, apportion such just compensation as it may award among the various persons found by it to own or have some right, title or interest in such real property. The awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made when real property is taken under the power of eminent domain.

"(5) The liability of the state terminates wholly when it pays into court the sums determined by the circuit court to be just compensation. Any cause of action granted by this section is barred unless such action is commenced within six months after the change of grade is physically completed and accepted by the Department of Transportation."

In plaintiffs' view, the application of the statute is straightforward: ODOT changed the highway grade, resulting in loss of direct access to plaintiffs' property at four locations. Plaintiffs note that the statute does not require an aggrieved plaintiff to complete judicial review of an administrative decision as a condition to bringing an action under the statute. According to plaintiffs, the trial court erroneously imported a ripeness requirement into the statute that is inconsistent with the subsection (5) requirement that an action be commenced within six months after the change of grade is completed and accepted by ODOT. In any event, plaintiffs observe that only two of the access points were subject to permits. Because the remaining access points were not covered by a permit, plaintiffs contend that their loss is not an issue in the administrative proceeding.

As defendants point out, the only significance plaintiffs' complaint attaches to the change of grade is that it eliminated all direct access to the highway. According to defendants, the alleged diminution in value to the property and businesses is not "legal damage or injury" to the property resulting from the change of grade within the meaning of the statute.

We agree with defendants that the decisive issue is whether plaintiffs have alleged and shown that the change of grade has caused legal damage or injury to their property. Unlike "damages," which generally refers to monetary compensation for a loss or harm, the singular form "damage," when used in a statute, normally refers to a loss, injury, or harm resulting from an act or omission. Sager v. McClenden, 296 Or. 33, 37, 672 P.2d 697 (1983). However, "legal damage" is not defined in ORS chapter 105, nor is it a recognized term that has a well-established legal meaning.² We therefore look to the ordinary meaning of the adjective "legal" to ascertain the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993).

"Legal" means "conforming to or permitted by law or established rules" or "according to the principles of law." Webster's Third New Int'l Dictionary, 1290 (unabridged ed 1993). The phrase "legal damage" therefore does not refer to any newly recognized harm but, rather, refers to harm for which a party may recover based on other existing legal principles. Relief for legal damage caused by a change of grade is payable as "just compensation" that is to be apportioned among those owning the property according to the "rules of law" applicable to eminent domain proceedings. ORS 105.755(2) and (4). Unless prescribed by another source, the legal principles that govern the award of just compensation for state-inflicted injury or harm to private property derive from the Fifth Amendment to the United States Constitution³ and Article I, section 18, of the Oregon Constitution.⁴ Although it is possible for such principles to derive from another source, the parties have identified no plausible alternative in this instance, and we are aware of none.

When the state trespasses on or creates a nuisance affecting private property, Article I, section 18, requires the state to compensate the aggrieved landowner for damages caused by its conduct. See Gruner v. Lane County, 96 Or.App. 694, 697, 773 P.2d 815 (1989)

. Just compensation for damage or injury to property affected by a change of highway grade would include, for example, damages for faulty drainage or the loss of lateral support. See, e.g., Kropitzer v. City of Portland, 237 Or. 157, 390 P.2d 356 (1964) (change in grade allegedly deprived plaintiff's property of lateral support, causing the property to subside). However, an abutting property owner's common-law right to public road access is qualified by the state's inherent power to protect the public safety, convenience, and welfare. Gruner, 96 Or. App. at 697,

773 P.2d 815. "Inconvenience, reduction in profits or depreciation in the value of property that occurs as a result of a legitimate exercise of the state's police power is damnum absque injuria and not a compensable taking." Id. at 697-98, 773 P.2d 815. That is, any such damage is harm without injury in the legal sense; there is...