Port of Umatilla v. Richmond

• Decision Date: 05 February 1958
• Parties: PORT OF UMATILLA, by and through its Board of Port Commissioners, composed of Irvin Mann, Jr., Roger J. Bounds, Orval McCormmach, Jens Terjeson and Dale Tucker, Appellant, v. R. W. RICHMOND and Elsie L. Richmond, husband and wife, and Umatilla County, Oregon, a municipal corporation, Respondents.
• Court: Oregon Supreme Court

Page 338

321 P.2d 338

212 Or. 596

PORT OF UMATILLA, by and through its Board of Port Commissioners, composed of Irvin Mann, Jr., Roger J. Bounds, Orval McCormmach, Jens Terjeson and Dale Tucker, Appellant, v. R. W. RICHMOND and Elsie L. Richmond, husband and wife, and Umatilla County, Oregon, a municipal corporation Respondents.

Supreme Court of Oregon, Department 1.

Argued Oct. 29, 1957.

Decided Feb. 5, 1958.

George H. Corey, Pendleton, argued the cause and filed a brief for appellant.

John F. Kilkenny and John H. Kottkamp, Pendleton, argued the cause for respondents. With them on the brief were Kilkenny & Fabre and Charles L. Powell, Pendleton.

Oregon State Public Port Authorities Ass'n filed a brief as amicus curiae.

Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.

BRAND, Justice.

This is an action brought by the Port of Umatilla to condemn approximately 168 acres of land belonging to the defendants Richmond. The trial court gave judgment for the defendants and dismissed the action. Plaintiff appeals.

The complaint is in the usual form. Paragraph 'VI' thereof reads as follows:

'For the development of port facilities, wharves, dock frontage, harbor improvements, storage facilities, cargo handling facilities and for the exercising, carrying out and executing of the powers provided by law for a port, it is necessary and convenient that plaintiff acquire the real property described in Paragraph V thereof. Prior to the commencement of this action the plaintiff by resolution found and declared that said real property was and is needed, required and deemed necessary and convenient for such purposes.'

In their further and separate answer defendants allege in part:

'* * * that the venture mentioned and described in said amended complaint is entirely new; that the plaintiff is attempting to exercise its right of eminent domain in connection with such property on an acreage far in excess of any acreage which can be used for port facilities at the present time or in the foreseeable future; that an area of land not in excess of 15 acres is sufficient for any port facilities now required or to be required by the said Port Commission in the foreseeable future; that the plaintiff is attempting to condemn and acquire such real property for the purpose of selling and leasing such real property to private investors who may come into the area; that defendants acquired title to such property for the express purpose of holding such property for sale and lease to private industry; that the plaintiff, in passing a resolution for the acquisition of such large tract of land, abused its discretion, in that there is no necessity therefor and said plaintiff has no constitutional right or authority to acquire real property for private purposes or for the purpose of conveying the same to private persons, firms or corporations.'

The reply was a general denial.

The cause was tried by the court without a jury. At the commencement of the trial the court said: 'As I understand it, the only question that is to be determined in this case is the necessity for taking.' Counsel for the parties agreed that such was the issue. After a long trial the court rendered a written opinion and entered judgment dismissing the action. No separate findings of fact appear in the record. However, we quote the following from the judgment:

'The Court finds in favor of the defendants Richmond and against the plaintiff on the issues of fact involved in this cause and finds that plaintiff in this cause is attempting to condemn an area of property far in excess of its needs for public purposes and that a large portion of the property sought to be condemned is to be used for other than public purposes and on the other hand, is to be used to attract private industry to such area.'

From the brief of the Port we quote:

'* * * Essentially, the principal question here is whether a municipal port in Oregon may acquire land by eminent domain and lease the same for an industrial site. If this question is answered in the negative, the Port contends further that the record shows that the purpose of leasing was in any event incidental to the main purpose of port facility construction and that the acquisition is valid.'

The issues in this case are presented by four assignments of error, all of which raise the same question. Error is claimed in the denial of plaintiff's motion for judgment on the ground that the resolution of the Board of Port Commissioners 'proves the prima facie case of necessity and the defendant has failed to offer any evidence or failed to show at all that there was any abuse.'

The failure of the court to sustain plaintiff's objections to the proposed findings and judgment, the refusal to sign those proposed by plaintiff, the denial of plaintiff's motion for judgment notwithstanding the findings and verdict, and the denial of two motions by plaintiff for judgement on the pleadings constitute the assignments of error. They challenge the sufficiency of the allegations concerning abuse of discretion, characterizing them as merely conclusions of law, and they challenge the sufficiency of the evidence to show any such abuse.

The Port of Umatilla was established as a district in the year 1940. With the construction of the Bonneville and McNary Dams in the great waterway, the Columbia River, the Commission determined to construct port facilities to serve river commerce between the inland areas and tidewater. On investigation and report by engineers the Commission adopted the Cold Springs site which lies a few miles upstream from the city of Umatilla. On 7 November 1955 the commissioners adopted a resolution declaring the necessity of the acquisition of the property described in the complaint. It reads in part as follows:

'Whereas, for the purpose of providing port facilities, wharves, dock frontage, harbor improvements, storage facilities, cargo handling facilities and for the exercising, carrying out and executing powers provided by law for a port for the purpose of serving the public, the Port of Umatilla plans and proposes to construct such facilities and to make such improvements for such purpose and to exercise, carry out and execute such powers on the real property hereinafter described, and that said real property is necessary for such purpose.

'Whereas, said real property has been appraised as required by law.

'Now, Therefore, Be It Hereby Resolved by this Board of Commissioners, all members thereof being present and voting affirmatively, as follows:

'1. That the Board of Commissioners does hereby find and declare that there is needed and required and deemed necessary and convenient for the development of port facilities, wharves, dock frontage, harbor improvements, storage facilities, cargo handling facilities and for the exercising, carrying out and executing the powers provided by law for a port as above mentioned, the following real property in fee simple, as set forth in Exhibit 'A' attached hereto and by reference made a part of this resolution.'

The defendant Umatilla County made no appearance in the case. We shall refer to R. W. Richmond and wife as 'the defendants.'

As we have indicated, the parties have agreed that the only question to be determined is the 'necessity' for taking. No question is raised as to the right of the plaintiff to condemn some of defendants' land for the purposes set forth in the quoted resolution declaring necessity. In fact the prayer of the defendants is that the court 'try out the question of the necessity for the large acreage which the plaintiff is attempting to condemn and to reduce the area of the property to be condemned to not in excess of 15 acres * * *.' This of course we cannot do in this law action. Notwithstanding the agreed limitation of the issue to that of necessity, the parties have argued pro and con the question whether the land proposed to be taken is for a public use. That issue cannot be avoided because if the land is not taken for a public use it could not be said to be necessary. We shall first consider the controlling rules of law with particular reference to the issues made by the pleadings and then will consider issues which arise on the evidence. It will be noted that the purposes for which the land is desired by the Port are specified in paragraph VI of the complaint which is set forth verbatim supra. The defendants allege that plaintiff is attempting to condemn the land 'for the purpose of selling and leasing * * * to private investors.' The reply denies that allegation.

We shall first consider the constitutional limitations upon the taking of private property by condemnation. The Constitution provides: 'Private property shall not be taken for public use * * * without just compensation.' Constitution of Oregon, Article I, Section 18. Amendments adopted in 1920 and 1924 illustrate the liberalizing of the concept of public use to include uses which would otherwise have been deemed private. The consolidated amendments of 1920 and 1924 read as follows:

'* * * provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use. * * *' Constitution of Oregon, Article I, Section 18.

The 1920 amendment authorizing the taking of ways for transportation of the products of mine, farm or forest resulted from an adverse holding in Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 P. 736, L.R.A.1916B, 1089. See, Smith v. Cameron, 1922, 106 Or. 1, at page 8, 210 P. 716, 27 A.L.R. 510. The 1924 amendment which included the taking of water for beneficial use apparently resulted from the adverse holding in Smith v. Cameron, supra. The development of a liberalizing public policy is indicated by these constitutional amendments.

The Port of Umatilla was organized under...