State, By and Through State Highway Commission v. Burk

CourtSupreme Court of Oregon
Writing for the CourtBRAND
Citation265 P.2d 783,200 Or. 211
Decision Date13 January 1954
PartiesSTATE, BY AND THROUGH STATE HIGHWAY COMMISSION v. BURK et al.

Page 783

265 P.2d 783
200 Or. 211
STATE, BY AND THROUGH STATE HIGHWAY COMMISSION
v.
BURK et al.
Supreme Court of Oregon, En Banc.
Argued Oct. 7, 1953.
Jan. 13, 1954.

Page 787

[200 Or. 218] George A. Rhoten, Salem, argued the cause for appellants. With him on the brief were Rhoten, Rhoten & Speerstra, Salem.

Ralph Wyckoff, Asst. Atty. Gen., argued the cause for State Highway Commission, plaintiff-respondent. With him on the brief were George Neumer, former Atty. Gen., C. W. Enfield, Asst. Atty. Gen. and Chief Counsel for Oregon State Highway Commission, Fred A. Miller, Asst. Atty. Gen., and Robert L. May, Jr., Asst. Counsel, Salem.

BRAND, Justice.

This is a condemnation action brought by the State of Oregon by its Highway Commission against the owners and their lessees of land required for a non-access highway. The principal issues in the case are two. The first concerns the claim of the defendants that there should have been separate awards of damages to the owners of the land, on the one hand, and to the several lessees of portions of the same, on the [200 Or. 219] other. The second main issue is new to our jurisprudence. The question presented is whether the defendants were entitled to compensation for the taking of an alleged right or easement of access. The defendants claim that the court erred in ruling that they were not entitled to damages on account thereof. These and other minor issues were resolved against the contentions of the defendants. The case went to the jury, which returned a single verdict for $33,000 with interest, and a judgment was entered on the verdict condemning the property for a non-access highway. The defendants appeal.

The complaint, which was filed on September 8, 1950, alleges that a certain highway known as the Salem-Dallas Highway, being State Highway No. 30 and State Route No. 22, is a state highway and a part of the state and federal highway systems. The complaint alleges that the section of said highway in question had been previously constructed and maintained, but that traffic conditions had made it necessary to relocate it upon a new line. The complaint alleges that the defendants Burk, Pearl C. Couey and Modella May Rodgers, are the owners of the record title to certain real property which is described therein. We shall refer to this group of defendants as the 'owners'. It is alleged that the defendants Patzer, Galloway and Winkenwerder claim some title or interest in the property, the exact nature of which is unknown to the plaintiff. The complaint, as modified by the supplemental complaint, describes the tract of land which is required for right-of-way purposes and for proper relocation, construction, improvement, repair, maintenance and operation of said highway by the state. No part of the land condemned for the [200 Or. 220] new highway was within the boundaries of the old. The property described is a part of a larger tract owned by the defendants and amounts to approximately 8 1/2 acres in area. The complaint

Page 788

then alleges that the highway carries a large volume of traffic and that it is the judgment and opinion of the Commission that, in addition to the acquisition of fee simple title to the real property described in the supplemental complaint, 'there be also condemned and extinguished such interest, if any there be, by which a right of access, ingress, egress, or regress, or any right in the nature of a right of access, ingress, egress, or regress, may accrue' to the property owned by the defendants but not taken. The prayer is for an assessment to be made by a jury as to the compensation to which the defendants should be entitled for the taking of the fee simple title to the real property described, and for the extinguishing of all rights of access and reservations or interests 'if any there be'. The answer of the owners, so far as material to this controversy, alleges that, should their property and rights be taken, there would be damage in the sum of $75,000, the alleged value of the said property and rights, plus the damage to the remaining property of the defendants not taken. It was alleged that the sum stated 'is, of course, exclusive of sums, if any, to which defendants Patzer, Galloway and Winkenwerder may be entitled.' The last-quoted portion of the answer of the owners was stricken upon motion of the plaintiff. Answers were filed by the defendants Patzer and Winkenwerder. The answer of Winkenwerder alleged in part:

'I.

'On or about November 15, 1949, by a written lease, this defendant duly leased from the owners thereof, from said date until November 14, 1952, [200 Or. 221] inclusive, a store space known as 'Winks Place' at 556 Edgewater Street, Salem (formerly West Salem), Polk County, Oregon, being approximately 30 feet wide and 50 feet deep, and being part of the Burk Building on the real property described in Paragraph IV of the Complaint. Said lease is in good standing, and ever since the date thereof this defendant has been, and is now, in possession of said leased property and is the owner and operator of a going tavern business therein, including improvements and trade fixtures constructed and installed on said property by this defendant in reliance upon the full term of said lease.

'II.

'By reason of the aforesaid matters, this defendant's rights and property interests which are sought to be taken by condemnation herein, and his damages resulting from such condemnation, are and will be separate and distinct from the rights, property interests and damages of the other defendants involved herein.'

He alleged that the value of his rights and property interests was $15,000, and he sought in addition $750 as a reasonable attorney fee. The allegations of the defendant Winkenwerder concerning the separate value of his leasehold interests were stricken by the court upon the motion of the plaintiff. A similar answer was filed by the defendant Patzer, setting up his unexpired 10-year lease, and alleging that pursuant thereto he had constructed a pumice block and concrete one-story building on said property and had increased the value of the premises thereby. He also claimed that his damages in the amount of $15,000 should be separately assessed, and he sought attorney fees in the sum of $750. The allegations concerning his alleged right to separate assessment of damages were stricken.

[200 Or. 222] After the filing on January 3, 1952 of the supplemental complaint, to which reference has been made, the defendant owners filed an answer. In it they eliminated the allegations concerning their alleged right to a separate assessment of their damages, and in lieu thereof alleged that the true value of the property and rights of all defendants, plus damage to the remaining property, was $85,000 with 6 per cent interest from September 8, 1950. They also sought attorney fees. The plaintiff replied, denying the alleged damages and denying that any sum should be allowed as attorney fees.

On January 16, 1952 the defendant Patzer filed an amended answer. The allegations were similar to those of his original answer except that he eliminated the allegations concerning his separate damage which

Page 789

had been stricken by the court. On January 16, 1952 the defendant Winkenwerder filed his amended answer, eliminating the matter which had been stricken by the court, but amplifying his previous allegations concerning the nature of his leasehold. He alleged that:

'I.

'On or about November 15, 1948, by a written lease, this defendant duly leased from the owners thereof, from said date until November 14, 1952, inclusive, the real property known as 'Wink's Place' at 556 Edgewater Street in Salem (formerly West Salem), Polk County, Oregon, consisting of a store space and adjacent parking lot (on the east side of said building) abutting said Edgewater Street (present Salem-Dallas Highway), and consisting of a parking strip between said building and said street, and consisting of the right of access by vehicles to both the front and rear of said property from along the entire frontage of said building and parking lot from said street.

[200 Or. 223] 'II.

'Said store space is approximately 30 feet wide fronting Edgewater Street and 50 feet deep, and is part of the Burk Building on the property described in paragraph IV of the Complaint; but said building is not included in the property described in the Supplemental Complaint. Said parking lot is on the easterly side of said store space and is approximately 35 feet wide fronting on Edgewater Street and approximately 90 feet deep. This defendant's property abuts at the rear thereof on the re-located Salem-Dallas Highway; and the rear 25 feet of said parking lot plus a corner portion of the remainder thereof plus a triangular portion of the front of such parking lot 35 feet long and 10 feet wide on the easterly end of such wedge are included in the property described in the Supplemental Complaint.'

Defendant also alleged that the lease was in good standing and that the total value of all the property and rights of the defendants, plus damage to the remaining property and rights was the sum of $85,000. He also sought attorney fees. Replies were filed. The cause was dismissed against the defendants Galloway and judgment was entered upon the verdict of the jury which assessed the damages in a single lump sum, without any segregation as between the various defendants. The judgment recited that 'on September 8, 1950, plaintiff, pursuant to the provisions of Section 100-116, O.C.L.A., took possession of, and proceeded to construct a public highway thereon, all of the real property sought to be condemned * * *.' The court further found that the defendants were entitled to their costs and disbursements and a reasonable attorney fee to be fixed by the court. The judgment further recited that the plaintiff had elected to take the property and had tendered the amount [200 Or. 224] of the verdict plus 6 per...

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80 practice notes
  • Darnall v. State, No. 9859
    • United States
    • Supreme Court of South Dakota
    • 3 mars 1961
    ...275. It is a separate property right which cannot be extinguished without compensation, State, By and Through State Highway Comm. v. Burk, 200 Or. 211, 265 P.2d 783; it is land or a property right in land that plaintiffs allege has been taken or damaged by the state. If it has, plaintiffs h......
  • Post No. 2874 Vfw. v. Redevelopment Auth., No. 2006AP2866.
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 juillet 2009
    ...even though that value may be less than the aggregate values of the interests in that land."); State ex rel. Highway Comm'n v. Burk, 200 Or. 211, 265 P.2d 783, 798-800 (1954) (holding that although the constitution may not require the valuation of condemned property to be in a lump sum, "[t......
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • 23 mars 1961
    ...prevailing here: City of Los Angeles v. Geiger, 94 Cal.App.2d 180, 210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. St......
  • State ex rel. State Highway Commission v. Danfelser, No. 7021
    • United States
    • New Mexico Supreme Court of New Mexico
    • 5 août 1963
    ...109 N.W.2d 71, 111 N.W.2d 95; Robinett v. Price (1929), 74 Utah 512, 280 P. 736; State, by and through State Highway Com'n v. Burk, 1954, 200 Or. 211, 265 P.2d Department of Highways v. Jackson (Ky.1957), 302 S.W.2d 373; Hillerege v. City of Scottsbluff, 1957, 164 Neb. 560, 83 N.W.2d 76; Ho......
  • Request a trial to view additional results
80 cases
  • Darnall v. State, No. 9859
    • United States
    • Supreme Court of South Dakota
    • 3 mars 1961
    ...275. It is a separate property right which cannot be extinguished without compensation, State, By and Through State Highway Comm. v. Burk, 200 Or. 211, 265 P.2d 783; it is land or a property right in land that plaintiffs allege has been taken or damaged by the state. If it has, plaintiffs h......
  • Post No. 2874 Vfw. v. Redevelopment Auth., No. 2006AP2866.
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 juillet 2009
    ...even though that value may be less than the aggregate values of the interests in that land."); State ex rel. Highway Comm'n v. Burk, 200 Or. 211, 265 P.2d 783, 798-800 (1954) (holding that although the constitution may not require the valuation of condemned property to be in a lump sum, "[t......
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • 23 mars 1961
    ...prevailing here: City of Los Angeles v. Geiger, 94 Cal.App.2d 180, 210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. St......
  • State ex rel. State Highway Commission v. Danfelser, No. 7021
    • United States
    • New Mexico Supreme Court of New Mexico
    • 5 août 1963
    ...109 N.W.2d 71, 111 N.W.2d 95; Robinett v. Price (1929), 74 Utah 512, 280 P. 736; State, by and through State Highway Com'n v. Burk, 1954, 200 Or. 211, 265 P.2d Department of Highways v. Jackson (Ky.1957), 302 S.W.2d 373; Hillerege v. City of Scottsbluff, 1957, 164 Neb. 560, 83 N.W.2d 76; Ho......
  • Request a trial to view additional results

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