ODOT v. Winters

• Decision Date: 27 September 2000
• Parties: STATE of Oregon, By and Through its DEPARTMENT OF TRANSPORTATION, Respondent, v. Howard A. WINTERS, Appellant.
• Court: Oregon Court of Appeals

10 P.3d 961

170 Or. App. 118

STATE of Oregon, By and Through its DEPARTMENT OF TRANSPORTATION, Respondent, v. Howard A. WINTERS, Appellant.

(9604-03061; CA A100371)

Court of Appeals of Oregon.

Argued and Submitted September 1, 1999.

Decided September 27, 2000.

Donald Joe Willis argued the cause for appellant. With him on the briefs were Karen O'Kasey and Michael A. Cohen.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge,¹ and WOLLHEIM and BREWER, Judges.

BREWER, J.

Defendant owned property adjacent to State Highway 125 in Multnomah County. In 1996, plaintiff, the State of Oregon, through the Department of Transportation, proposed to acquire a strip of property from defendant along the highway for the purpose of mitigating rock slides. Defendant opposed the acquisition, and plaintiff commenced this action for condemnation. In his answer, defendant asserted three counterclaims for inverse condemnation and one counterclaim for trespass. Defendant appeals from an adverse judgment, assigning error to the trial court's rulings on his inverse condemnation counterclaims. He also assigns error to the trial court's failure to admit evidence that he asserts was relevant for the purpose of determining just compensation for the condemned property and to the court's refusal to permit discovery that defendant asserts was necessary to determine whether he was entitled to attorney fees.

The relevant facts are not disputed. Defendant's total property consists of 163 acres of farmland adjacent to State Highway 125 near Dabney State Park. A county road also ends at a marker located on defendant's property. Defendant has owned the property since the 1950s, and he has used it for agricultural purposes and timber production. The highway lies between the Sandy River and defendant's property. The highway is near river level, and defendant's property slopes steeply upward on the other side of it. The highway adjacent to defendant's property has a history of rock fall. In 1990, a bluff on defendant's property overhanging the highway collapsed, sending 30,000 cubic yards of rock onto the highway. In 1991, defendant conveyed to plaintiff a permanent slope easement and an access easement running from the end of the county road to the slide area. The easements were granted to facilitate the repair of rock slides on the north side of the highway and to prevent rock from sloughing off onto the highway. The state paid defendant $7,000 for the slope and access easements.

In 1996, plaintiff proposed to acquire a narrow strip of defendant's property consisting of approximately 2.7 acres directly above and along the highway. The purpose of the proposed acquisition was to mitigate further a rockslide to the west of the Stark Street Bridge and to "relocate, construct, improve and maintain" the highway. The plan called for use of the 1991 access easement to facilitate construction of a gradual slope up the face of the cliff above the highway, including a "sliver cut" off the side of the slope that would allow rock to fall into a safe area. The state intended to use the excavated rock for construction on Interstate Highway 84. Defendant contested the lawfulness of the taking and the scope of the project and also asserted that it would damage scenic and historic features in the area.

In April 1996, plaintiff filed a complaint to condemn the parcel and also sought the right to enter and use defendant's remaining property to facilitate the project work. Plaintiff alleged that just compensation for the property was $20,500. A lengthy phase of negotiations ensued between the parties concerning the necessity, scope, and safety of the project. By February 1997, plaintiff had determined that the project as originally proposed was not feasible because the condemned area was not large enough. Plaintiff reduced the scope of the project on the recommendation of the general contractor. As revised, the project eliminated the cut in the cliff and the removal of rock. Instead, plaintiff proposed to cut trees along the top edge of the cliff, anchor large rock blocks to the cliff, install a wire mesh over the slope, and cover the base of the cliff with concrete.

The case was bifurcated for trial. In the first phase of trial, which was held in February 1997, the court determined that the taking was lawful. The second portion of the case involved the question of just compensation for the condemned property and the disposition of defendant's counterclaims. After the court determined that plaintiff was entitled to take the property, plaintiff filed an amended complaint alleging that its true value was $8,050. In his supplemental answer, defendant objected to plaintiff's reduced estimate of just compensation. Defendant also asserted four counterclaims.

The first counterclaim, for inverse condemnation, alleged that plaintiff's surveyors entered defendant's property without permission after the commencement of the condemnation proceeding and "appropriate[ed] the same for a public purpose in the nature of a temporary work easement." Defendant sought compensation in the sum of $2,000 for the alleged taking. Alternatively, in his second counterclaim, defendant alleged that the surveyors' use of the property constituted a trespass.² Defendant's third counterclaim alleged inverse condemnation for over-use of the 1991 easement during the course of the project and sought compensation for that additional burden in the amount of $5,000. In his fourth counterclaim, also for inverse condemnation, defendant alleged that plaintiff's use of the condemned property as originally planned would cause a loss of lateral support and erosion to defendant's adjacent property and that just compensation for the taking of those rights is $150,000.

At trial, defendant moved for a directed verdict on his first counterclaim for inverse condemnation. The trial court denied the motion. The court granted plaintiff's motion for a directed verdict on defendant's fourth counterclaim. The parties' remaining claims were tried to a jury. The jury returned a verdict for plaintiff on defendant's first and third counterclaims for inverse condemnation but found for defendant on the trespass counterclaim and awarded him damages of $2,000. The jury also awarded defendant just compensation of $28,888 for the taking of the 2.7 acre parcel.

In his first assignment of error, defendant contends that the trial court erred in denying his motion for a directed verdict on his first counterclaim. In reviewing the trial court's ruling, we consider the evidence in the light most favorable to plaintiff, the nonmoving party. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). The verdict will not be set aside "unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary" to support the verdict. Id.

In his first counterclaim, defendant alleged that the surveyors' presence on his property during the project amounted to the taking of a temporary work easement and, therefore, resulted in inverse condemnation. Inverse condemnation arises from government action that has the effect of taking property without the formal exercise of the power of eminent domain. Dept. of Transportation v. Hewitt Professional Group, 321 Or. 118, 130-31, 895 P.2d 755 (1995). A "taking" generally is defined as any "substantial" interference with private property rights. Hawkins v. City of La Grande, 315 Or. 57, 68, 843 P.2d 400 (1992); Vokoun v. City of Lake Oswego, 169 Or.App. 31, 36, 7 P.3d 608 (2000). "Whether an interference with property rights is `substantial' is a jury question." Id.; Hawkins, 315 Or. at 72,

843 P.2d 400.

Defendant asserts that the surveyors' activities amounted to a taking as a matter of law because their presence deprived him the right to exclude others from his property. See Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)

(right to exclude others is one of the most fundamental property rights); Loretto v. Telepromter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). However, the evidence showed only that plaintiff's personnel walked and parked vehicles on some portion of defendant's property on a few occasions during the course of the project. There was no evidence that the surveyors used any particular portion of the property for any extended period of time or caused any physical damage. The jury was entitled to find that any interference was insubstantial. Accordingly, the trial court did not err in denying defendant's motion for a directed verdict on his first counterclaim.

In his second assignment of error, defendant contends that the trial court erred in failing to give his requested jury instructions with respect to the first counterclaim. Defendant offered two detailed instructions. The first stated that "[i]nverse condemnation pertains to property rights not specifically sought by the condemning authority, which in this case is the State, but [are] nevertheless taken for a public purpose as a result of the government's conduct." The second instruction purported to explain the claim of inverse condemnation in the context of temporary takings, listing its elements:

"(1) the property must be taken from a private party; (2) taken by the government, (3) taken for a public purpose, (4) the government must not have paid just compensation for the taking, and (5) the taking is not permanent but of temporary duration. It is not necessary for the landowner to be denied all use of his property or that a landowner be denied economical use of his property."

The court gave a different instruction that essentially covered the elements of a claim for inverse condemnation in the context of a temporary taking. See Thornburg v. Port of...