Kropitzer v. City of Portland

• Decision Date: 18 March 1964
• Citation: 390 P.2d 356,237 Or. 157
• Parties: Harold KROPITZER and Lorraine Kropitzer, husband and wife, Respondents, v. CITY OF PORTLAND, Oregon, a municipal corporation, Appellant.
• Court: Oregon Supreme Court

Page 356

390 P.2d 356

237 Or. 157

Harold KROPITZER and Lorraine Kropitzer, husband and wife, Respondents, v. CITY OF PORTLAND, Oregon, a municipal corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 3, 1964.

Decided March 18, 1964.

Robert L. Hurtig, Portland, argued the cause for appellant. With him on the briefs were Alexander G. Brown and Marian C. Rushing, Portland.

Jonathan U. Newman, Portland, argued the cause for respondents. With him on the brief were Cake, Jaureguy, Hardy, Buttler & McEwen and John R. Faust, Jr., Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, O'CONNELL, GOODWIN and LUSK, JJ.

O'CONNELL, Justice.

This is an action to recover damages for an alleged appropriation of plaintiffs' property by defendant city through inverse condemnation. Defendant demurred to plaintiffs' complaint on the ground that it failed to allege any act constituting a taking for which defendant would be required to compensate plaintiffs. The demurrer was overruled. Defendant appeals from a judgment for plaintiffs.

In 1911 plaintiffs' predecessor in interest subdivided a tract of land and dedicated to the public the streets designated in the plat. Defendant accepted the dedication and by ordinance enacted in 1912 established the grades of the streets. In 1957 plaintiffs purchased a hillside lot in the subdivision and constructed a house on the lot. In 1960 a paved street at the established grade was authorized by defendant. In making the excavation to the grade the contractor cut into the hillside adjacent to plaintiffs' property but within the boundaries of the street. As a result of the excavation plaintiffs' land subsided. It was established that plaintiffs' land would have subsided to the same extent even if there had been no building upon it. There is no evidence that either the defendant or the contractor was negligent in any respect.

The trial court held that the defendant's conduct constituted a taking of a portion of plaintiffs' property without compensation and was, therefore, in violation of the Oregon Constitution, Article I, § 18. ¹

The right to lateral support is an interest in land. If land subsides as a result of the removal of support, the owner has been deprived of a property interest. It is 'property' within the meaning of Artiele I, § 18, Oregon Constitution, and may not be taken without just compensation. We so held in Mosier v. Oregon Navigation Company, 39 Or. 256, 64 P. 453, 87 Am.St.Rep. 652 (1901). In that case the defendant was a private corporation. The same principle is applicable, however, where lateral support is removed by a municipal corporation without the consent of the property owner. It follows from the foregoing that plaintiffs here are entitled to recover unless they or their predecessors in interest had, prior to the subsidence, parted with the right to have the land supported.

A landowner may, of course, convey to another an easement permitting the removal of support. ² A similar interest in the form of a public easement may be created upon a dedication of streets for public use. The question is whether a dedication without an express grant of the right to remove support will give rise to such an easement.

Authority may be found both supporting and opposing the proposition that a dedication of land for street purposes includes an implied easement to remove necessary support to abutting property. There is a substantial body of authority supporting the view that a city stands in the same position as a private person with respect to liability for the removal of lateral support in the construction of city streets. This view is well stated in Lewis on Eminent Domain, § 126, p. 194-196 (3d ed. 1909):

'The public, as owner of the street, is in fact an adjoining proprietor, whether it owns the fee or only an easement. Has the public any greater right than an individual proprietor, or does it hold the street subject to the same limitations and conditions that attach to private ownership? We think the latter. In the use of the street the public is subject to the same limitations that an individual would be who held the street as his private property. The abutting owner has the same rights with respect to the use of the street that he has with respect to the use of any other adjacent property. Consequently, he has a right to the support of the soil by that of the street. * * * These rights, unlike those of access and frontage, are absolute and paramount in the individual, and the public must so use and improve the streets as not to interfere with such rights, or else makd 'just compensation' for the damages occasioned by such interference.

'It is evident that these rights exist in the abutting owner, unless they are taken or acquired by the public when the street is established. They always exist with respect to adjoining property, unless they have been expressly reserved or granted in favor of other property. These rights are never expressly granted, released or condemned when a street is established. The land alone is taken, or granted, or dedicated, as the case may be. But land is always understood to have attached to it these universal rights and obligations relating to its use and enjoyment. * * * The use of the land for a street does not necessarily require that these rights of support, etc., should be in the public. It is always possible and practicable to improve a street without interfering with such rights. It is vastly more for the public interest that the public should occasionally incur increased expense in making improvements, to avoid interfering with such rights, than that the public should in all cases be compelled to pay for the loss of such rights when a street is established. * * * The more reasonable * * * view is that such damages are not the subject of assessment in such cases. * * *'

Authorities expressing a contrary view frequently base municipal immunity upon the theory of the dedicator's implied intent to grant an easement to remove necessary support.

'* * * When, under such legislation, an owner dedicates without restriction land for a public street, he must be taken to consent, for the reasons stated in a previous section, that the public authorities may determine grades, and possibly what future changes in grades may be necessary or desirable for the public convenience. He must contemplate that hills within the limits of the street will be reduced from the natural surface, making a cut; that ravines and low places therein will be filled up to the ordained grade or level, leaving an embankment in front of the abutting property. The right to make such improvements of the street for street purposes would seem to be embraced in his grant or dedication to the public.' 2 Dillon on Municipal Corporations § 995, p. 1236 (4th ed. 1890).

In some cases it appears that even in the absence of a finding of an intent to include in the dedication the right to remove support, the city is found to be free from liability simply because the public interest would thus best be served. Sometimes both of these rationales are employed in the same case. Illustrative is Fletcher v. City of Seattle, 43 Wash. 627, 86 P. 1046, 1047, 88 P. 843 (1906). There the court reasoned:

'* * * The streets are dedicated for the purpose of giving access to the adjoining lots, or of making such lots available for residence or business purposes, and the value of the lots necessarily depends upon the maintenance of streets upon which they abut. This element of value must have been taken into consideration by the dedicator, and he ought not to be heard to demand damages for the establishment of a reasonable grade, or the maintenance of a reasonable road which must be established or maintained to make his property available as town or city...