Morrison v. Clackamas County

• Decision Date: 31 January 1933
• Citation: 141 Or. 564,18 P.2d 814
• Parties: MORRISON v. CLACKAMAS COUNTY.
• Court: Oregon Supreme Court

18 P.2d 814

141 Or. 564

MORRISON v. CLACKAMAS COUNTY.

Supreme Court of Oregon

January 31, 1933

Department 2.

Appeal from Circuit Court, Clackamas County; Gale S. Hill, Judge.

Action by C. D. Morrison against Clackamas County. From judgment dismissing plaintiff's action, on demurrer to complaint plaintiff appeals.

Reversed and remanded, with directions.

This is an appeal by plaintiff from a judgment of dismissal entered pursuant to an order sustaining a general demurrer to plaintiff's complaint. Therefore the only question presented is whether the complaint states facts sufficient to constitute a cause of action. It involves the question whether the facts alleged constitute a "taking" of private property for public use, within the purview of the Constitution.

The complaint alleges substantially the following facts Plaintiff was owner of a small tract, about an acre of land situated on the Sandy river in Clackamas county, Or., with a dwelling house and other buildings thereon. The property was located near a bend on the northwesterly bank of the river. The defendant had constructed and maintained a county bridge spanning the river at a point on the river a short distance above plaintiff's land. The bridge constituted a part of the highway system of Clackamas county. At the site of the bridge and at all points contiguous to plaintiff's land the pressure of the current of the river was against the southeasterly side of the stream and away from plaintiff's land to such an extent that it was forming a "cut bank" on the side of the river opposite plaintiff's land. In 1930 the defendant county, for the purpose of protecting the south pier of the bridge and the highway leading thereto, constructed in said stream under and parallel with the bridge a structure of timber and stone commonly called a jetty, which extended from the south pier of the bridge to the central pier thereof, situated about midway of the stream. The jetty was built in such a manner that it completely closed and obstructed the southerly portion of the channel and forced the entire flow of the stream over to and along the northerly bank. The natural and necessary effect of the construction of said bridge and jetty was to force the entire flow of the river through the space between the central pier and the northerly pier of the bridge along the northerly bank of the stream and immediately toward and against plaintiff's land. Sandy river is a mountain stream and is annually subjected to freshets or periods of high water. April 6, 1931, at the time of the annual high water stage of the river, the said bridge and jetty diverted the stream from its natural course and caused the entire flow of the river to be driven onto, against, and over the plaintiff's land, with such force and violence that all his personal property and improvements were lost and destroyed and the surface of said real property was completely washed away and rendered utterly valueless, with the further result that a new channel for said river was created over and across plaintiff's land and said land is now situated in and occupied by the main bed of the stream. The complaint further alleges that defendant has appropriated all of plaintiff's property to its own use and plaintiff has been damaged in the sum of $3,500, and that on June 12 plaintiff presented a claim against the county for the payment of damages, which was rejected.

Defendant demurred to the complaint for the reason that same does not state facts sufficient to constitute a cause of action. Plaintiff elected to stand upon his complaint, and the action was dismissed.

Complaint held to sufficiently allege manner of destruction of acreage property by county's diversion of stream over it, particularly where motion to make more definite and certain was not made. Const. art. 1, § 10; ORS 30.320, 30.330, 281.340, 281.370.

Verne Dusenbery, of Portland (Crum & Dusenbery, of Portland, on the brief), for appellant.

Fred A. Miller, of Oregon City, for respondent.

BEAN, J.

The facts alleged in the complaint show that the property of plaintiff was, by reason of the construction of the jetty by the county, subjected to the destruction alleged for a public use, namely, to protect the county highway and the county bridge, without just compensation. We think the use or destruction of the property amounted to a taking for public use within the meaning of article 1, § 18, of the Constitution of Oregon. The action of the county constituted a taking within the meaning of the Constitution just as much as if the county had taken the dirt or soil which was washed away from plaintiff's land and used it for widening the highway which was intended to be benefited by the construction of the jetty. The county is bound by the natural consequence of its acts, whether the result was contemplated or not.

Section 18 of our organic law provides as follows: "Private property shall not be taken for public use, *** without just compensation; *** the use of all roads, ways and waterways *** or water for beneficial use or drainage *** is declared a public use."

Article 1, § 10, of the Constitution, ordains that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

In Smith v. Cameron, 123 Or. 501, 262 P. 946, it is said the term "waterways" used in article 1, § 18 of the Constitution of Oregon, is synonymous with "water courses," either natural or artificial.

Section 37-305, Oregon Code 1930, provides that "Every county of the state of Oregon is hereby authorized and empowered to condemn, acquire and appropriate any land or property, *** or to protect the roads, highways, bridges or other public property from overflow by floods or freshets. ***" Section 37-307 directs that "compensation for the property, *** and the damages for the taking thereof shall be paid from funds of said county. ***"

According to the more modern authorities, any destruction, restriction, or interruption of the common and necessary use and enjoyment of the property of a person for a public purpose constitutes a "taking" thereof. Kurtz v. Southern Pac. Co., 80 Or. 213, 155 P. 367, 156 P. 794; Mosier v. Oregon Nav. Co., 39 Or. 256, 64 P. 453, 87 Am. St. Rep. 652; 20 C.J. 666, § 138; 1 Lewis on Eminent Domain (3d Ed.) §§ 65 and 66; Eaton v. Boston, C. & M. Ry. Co., 51 N.H. 504, 12 Am Rep. 147; Stockdale v. Rio Grande Western Ry. Co., 28 Utah, 201, 77 P. 849; Knowles v. New Sweden Irr. Dist., 16 Idaho, 217, 101 P. 81.

When the current or flow of a stream of water is obstructed or diverted from its natural course for a public use, so that it invades and totally destroys private property or materially decreases its value, it amounts to a taking within the meaning of the State and Federal Constitutions. Theiler v. Tillamook County, 75 Or. 214, 146 P. 828, 829; Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; White v. Pennsylvania R. Co., 229 Pa. 480, 78 A. 1035, 38 L. R. A. (N. S.) 1040; Conger v. Pierce County, 116 Wash. 27, 198 P. 377, 18 A. L. R. 393; 1 Lewis on Eminent Domain (3d Ed.) 86, § 78.

It is not necessary that the owner of property be actually dispossessed or that the property be completely destroyed in order to constitute a taking within the meaning of the constitutional provisions. U.S. v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Miller v. City of Morristown, 47 N. J. Eq. 62, 20 A. 61; Barron v. Memphis, 113 Tenn. 89, 80 S.W. 832, 106 Am. St. Rep. 810; Great Northern Ry. Co. v. State, 102 Wash. 348, 173 P. 40, L. R. A. 1918E, 987.

In an action of this character it is no defense that there was no specific intention on the part of defendant to appropriate plaintiff's property, but the defendant must be held to have intended to do those things which are the natural and ordinary consequences of his act. Doubtless the defendant county intended to construct the jetty. The natural consequence, of course, followed. Miller v. Morristown, supra; Great Northern Ry. Co. v. State, supra; John Horstmann Co. v. U. S., 48 Ct. Cl. 423.

The provisions of the Constitutions to the effect that private property shall not be taken for public use without just compensation are self-executing, and the injured individual has a remedy at law to recover the damages sustained apart from eminent domain proceedings. Board of Com'rs of Logan County v. Adler, 69 Colo. 290, 194 P. 621, 20 A. L. R. 512, and note; Gearin v. Marion County, 110 Or. 390, 223 P. 929; Theiler v. Tillamook County, supra.

1 Lewis on Eminent Domain (3d Ed.) 58, § 66, declares: "The law as to what constitutes a taking has been undergoing radical changes in the last few years. Mr. Sedgwick, writing in 1857, in speaking of this subject, says: 'It seems to be settled that, to entitle the owner to protection under this clause, the property must be actually taken, in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damage, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain.' The Supreme Court of Maine, in interpreting the constitutional provision in question, in 1852, said: 'The design appears to have been simply to declare, that private property shall not be changed to public property, or transferred from the owner to others, for public use, without just compensation.' These quotations present a fair statement of the condition of the law in the middle of the nineteenth century. *** Numerous cases decided since Mr. Sedgwick wrote have vindicated his view of what the law should be."

In the Federal Constitution and those of the older...