State By and Through State Highway Commission v. Stumbo

• Decision Date: 25 May 1960
• Citation: 2 A.L.R.3d 1028,352 P.2d 478,222 Or. 62
• Parties: , 2 A.L.R.3d 1028 STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, Respondent, v. Robert Gordon STUMBO, also known as Robert G. Stumbo, and Jane Doe Stumbo, husband and wife, if married; the unknown heirs of S. R. Stumbo, deceased; the unknown heirs of C. W. Stumbo, deceased; Jane Doe Stumbo, widow of C. W. Stumbo, deceased; Jennie Pearl Stumbo and John Doe, wife and husband, if married; Allan D. Stumbo and Jane Doe Stumbo, husband and wife, if married; Harry W. Stumbo and Jane Doe Stumbo, husband and wife, if married; Clair W. Stumbo and Jane Doe Stumbo, husband and wife, if married, Appellants, STATE of Oregon, by and through its State Tax Commission; Douglas County, a political subdivision of the State of Oregon; Russell E. Heysell and Jane Doe Heysell, husband and wife, if married; Jay B. Moore and Jane Doe Moore, husband and wife, if married; Jennie M. Gilbert and John Doe, wife and husband, if married; Ray M. and Lavina Patterson; Lou R. Cranston and Helen M. Cranston; Patricia Cranston and John Doe, wife and husband, if married, Defendants.
• Court: Oregon Supreme Court

Page 478

352 P.2d 478

222 Or. 62, 2 A.L.R.3d 1028

STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, Respondent, v. Robert Gordon STUMBO, also known as Robert G. Stumbo, and Jane Doe Stumbo, husband and wife, if married; the unknown heirs of S. R. Stumbo, deceased; the unknown heirs of C. W Stumbo, deceased; Jane Doe Stumbo, widow of C. W. Stumbo deceased; Jennie Pearl Stumbo and John Doe, wife and husband, if married; Allan D. Stumbo and Jane Doe Stumbo husband and wife, if married; Harry W. Stumbo and Jane Doe Stumbo, husband and wife, if married; Clair W. Stumbo and Jane Doe Stumbo, husband and wife, if married, Appellants STATE of Oregon, by and through its State Tax Commission; Douglas County, a political subdivision of the State of Oregon; Russell E. Heysell and Jane Doe Heysell, husband and wife, if married; Jay B. Moore and Jane Doe Moore, husband and wife, if married; Jennie M. Gilbert and John Doe, wife and husband, if married; Ray M. and Lavina Patterson; Lou R. Cranston and Helen M. Cranston; Patricia Cranston and John Doe, wife and husband, if married, Defendants.

Supreme Court of Oregon, Department 1.

Argued March 3, 1960.

Decided May 25, 1960.

Robert A. Boyer, Medford, argued the cause for appellants. With him on the brief were Boyer & Holmes, Medford.

Charles Peterson, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., of Oregon, L. I. Lindas, John C. McLean and William A. Mansfield, Asst. Attys. Gen.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and HOLMAN, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant landowners from a judgment of condemnation obtained against their property in the circuit court for Douglas County by the State Highway Commission, acting in the exercise of its powers of eminent domain. Constitution of Oregon, Art. I, § 18; ORS 366.340 et seq.; ORS 374.035 et seq. Various parties and political subdivisions were joined as defendants, but all of these defaulted except numerous heirs of S. R. and C. W. Stumbo, represented by their attorney-in-fact, Robert Gordon Stumbo. These defendants will hereafter be referred to as the 'Stumbos.' The principal question presented by this appeal is whether the court below properly fixed the date at which compensation for the property taken is to be ascertained.

The land in question is a narrow strip 16 1/2 feet wide and 200 feet long, located in Douglas County about ten miles north of Wolf Creek. The Stumbos, who own a farm in the neighborhood, used this strip as part of a roadway connection with old Pacific Highway 99. In 1946 the state relocated Highway 99 so as to pass directly over the Stumbo strip. On or about October 1, 1946, the state took physical possession of the land and built the relocated highway over it. No effort was made to purchase or condemn the property, and it does not appear that either the Highway Commission or the Stumbos were aware of the true state of the title. Within the ten year period necessary to perfect adverse possession the Stumbos reasserted their right to the land, and in 1956 notified the Highway Commission of their claim. The commission then attempted to negotiate a purchase, but this effort failed. Thereafter, with full knowledge that the highway was laid over their property, the Stumbos conceived the idea of 'subdividing' the strip into square parcels two inches long and two inches wide, and in fact sold some 290 of these minute lots by quitclaim deed.

November 28, 1956, the state filed the present action for condemnation of the property. By virtue of the sale of lots in their subdivision, the Stumbos claimed a market value for the property of $250,274 and suggested a reasonable attorney's fee of $25,000. Their estimate of value was based on the theory that compensation was properly to be assessed at the date of the filing of the petition for condemnation--November 28, 1956. The trial judge decided, however, that compensation must be fixed at the time of the actual entry upon the land--October 1, 1946--plus an award of legal interest from that date. Accordingly, in his rulings on evidence and in his instructions he restricted the jury to a consideration of the value of the property in 1946. The jury, after hearing the evidence, returned a verdict for $125 plus interest, and judgment was entered for that amount.

The Stumbos do not contend that the award of compensation should have included the value of the improvements placed on their land by the state. The common law maxim, 'quicquid plantatur solo, solo cedit,' (whatever is affixed to the soil belongs to the soil) has rarely been applied to make a trespassing corporation, invested with the power of eminent domain, pay the value of its own improvements. Oregon Ry. & Nav. Co. v. Mosier, 1887, 14 Or. 519, 13 P. 300; 1 Orgel, Valuation under Eminent Domain (2d ed.) 408; Annotation 34 A.L.R. 1082. The Stumbos claim, however, that they are entitled to have the fair market value of the condemned land assessed at the date of filing the condemnation petition in 1956.

We suppose that the 1956 value of the Stumbo strip, with the highway erased from the landscape, would not differ widely from the 1946 value. Probably the defendants' principal motive in seeking a reversal of this judgment, as evidenced by their first assignment of error, is a desire to get evidence of their subdivision sales before the jury. That evidence, however, was incompetent to establish market value regardless of the date selected for valuation. It is true that the Stumbos retained a fee title to the land in 1956, and that as a general rule market value in condemnation proceedings may be proved by evidence of the uses to which the land has been, and might reasonably be, adapted, including subdivision. State Highway Comm. v. Deal, 1951, 191 Or. 661, 233 P.2d 242; State By and Through State Highway Comm. v. Superbilt Manufacturing Co., 1955, 204 Or. 393, 281 P.2d 707; State v. Cerruit, 1950, 188 Or. 103, 214 P.2d 346, 16 A.L.R.2d 1105. But where, as here, the state has actually even if tortiously taken possession of the property, and it is obvious to all reasonable men that condemnation is the only adequate remedy available to either the state or the landowner, the latter will not be permitted to take deliberate means to increase the measure of his damages. In the unusual situation presented here we think the same rule should apply as though defendants had begun to improve their property after condemnation proceedings were actually begun. For such improvements they could not, of course, recover. Cf. Keane v. City of Portland, 1925, 115 Or. 1, 235 P. 677; City of Portland v. Lee Sam, 1879, 7 Or. 397; In re City of New York, 1909, 196 N.Y. 255, 89 N.E. 814, 36 L.R.A.,N.S., 273; Annotation, 36 L.R.A.,N.S., 273 at page 276; 2 Lewis, Eminent Domain (3rd ed.) § 962, p. 1074. If the Stumbos had any doubt of the willingness of the state to condemn their property, they had a right to test it by bringing an 'inverse condemnation' proceeding. We have recognized the right of a landowner to bring such an action since our decisions in Morrison v. Clackamas County, 1933, 141 Or. 564, 18 P.2d 814, and Tomasek v. State, 1952, 196 Or. 120, 248 P.2d 703. Under the circumstances, the defendants followed any other course of action at their peril.

The question before us, therefore, is whether this strip of rural land is to be valued at the time of the trespass in 1946 or at the time of the legal condemnation in 1956. In support of the later date, appellants cite a number of Oregon cases which set forth the general rule that damages are to be ascertained at the time of filing the petition for condemnation. Of these, only State ex rel. v. Mohler, 1925, 115 Or. 562, 237 P. 690, 239 P. 193, presents a situation where the condemnor was wrongfully in possession when proceedings were begun. In that case the State Fish Commission had entered under a valid lease and held over after notice to quit was given. During the period of holding over it commenced an action to condemn the property. Although the opinion of this court stated the measure of damages to be 'the reasonable market value of the land at the date of the commencement of the action,' it is not persuasive here, for the remark viewed in its context was merely an afterthought and was not necessary to the decision of any issue raised by the parties. A similar statement was made in State ex rel. Olcott v. Hawk, 1922, 105 Or. 319, 208 P. 709, 209 P. 607, an earlier action between the same parties, but in that case the state was validly in possession under the terms of the lease when the condemnation action was filed. State Highway Commission v. Bailey, 1957, 212 Or. 261, 319 P.2d 906 is a recent case to approve the general rule, but again no trespass was involved.

Appellants argue that the statutory measures for obtaining property by eminent domain contemplate that the state must institute judicial proceedings before going into possession, and that that demand is conclusive there can be no 'taking' before the complaint is filed. Hence, they contend that compensation must be determined at the time of beginning the action. We agree that the procedures set out in ORS 366.375 to 366.392 do not countenance the trespassory invasion by the state in the present case or give it any possessory estate in the premises. ORS 366.390 requires the Highway Commission to institute proceedings to acquire title before making an entry, though it permits the Commission to enter pending the outcome of the trial. By virtue of ORS 366.380(7) the state does not acquire a fee until the assessed damages have been paid into court and judgment has been entered. We suppose that a landowner who has not been slumbering on his rights would be entitled to injunctive relief against a contemplated trespass, since, as we have noted, the power of eminent domain, while inherent in the state, 'lies...