State By and Through State Highway Commission v. Helliwell

• Decision Date: 25 January 1961
• Citation: 358 P.2d 719,225 Or. 588
• Parties: STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of M. K. McIver, Kenneth N. Fridley, and Glenn L. Jackson, Respondent, v. Ruth HELLIWELL, a single person, Appellant.
• Court: Oregon Supreme Court

Page 719

358 P.2d 719

225 Or. 588

STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of M. K. McIver, Kenneth N Fridley, and Glenn L. Jackson, Respondent, v. Ruth HELLIWELL, a single person, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 12, 1961.

Decided Jan. 25, 1961.

Samuel M. Suwol, Portland, argued the cause and filed briefs for appellant.

J. Robert Patterson, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., L. I. Lindas, Asst. Atty. Gen. and Chief Counsel for the State Highway Commission, and Charles Peterson, Asst. Atty. Gen.

Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

GOODWIN, Justice.

This is an appeal by the landowner from a judgment entered in an action to condemn land for highway purposes. The parties will be referred to as the landowner and the Commission.

In November, 1959, the Commission, in writing, offered the landowner $18,000 for the property to be taken for highway purposes. The offer was refused. The following month the Commission commenced condemnation proceedings. The complaint alleged that the true cash value of the property being taken, combined with the damages resulting to the remainder, equalled $16,150, or $1,850 less than the original offer.

The landowner demanded $30,000 as just compensation. Upon the issues thus made up, the jury returned a verdict for $18,000. Interest at the rate of 6 per cent per annum from the date the Commission took possession on January 31, 1960 was provided for in the form of verdict submitted to the jury and was allowed in the judgment.

The principal question before this court arises from the fact that the damages assessed by the jury, exclusive of interest thereon, did not exceed the amount offered by the Commission in its letter of November 30, 1959.

ORS 366.380(9) provides:

'The costs and disbursements of the defendants, including a reasonable attorney's fee to be fixed by the court, shall be taxed by the clerk and recovered from the state; but if it appears that the commission tendered the defendants before commencing the action an amount equal to or greater than that assessed by the jury, the state shall recover its necessary disbursements from the defendants.'

The trial court held on a supplemental hearing that the Commission had tendered to the landowner before commencing the action an amount equal to that assessed by the jury, and taxed costs accordingly. The net result was that the landowner had $90 in disbursements deducted from the award and was unable to recover attorney's fees from the state.

One assignment of error challenges the constitutionality of ORS 366.380(9). The question was not raised in the trial court, and therefore will not be considered here. Senger v. Vancouver-Portland Bus Co., 209 Or. 37, 43, 298 P.2d 835, 304 P.2d 448, 62 A.L.R.2d 265; Alpha Corp. v. Multnomah County, 182 Or. 671, 680, 189 P.2d 988. As Mr. Justice Rossman observed in a specially concurring opinion in Senger v. Vancouver-Portland Bus Co., supra, 209 Or. at page 47, 298 P.2d at page 839, the rule against considering a constitutional question for the first time on appeal is not inflexible, but the record from the trial court must afford some basis for a finding that a challenged act invades some constitutional right. We have found nothing in the record nor in the authorities cited to justify consideration of the constitutional question in the case at bar.

Assuming then, for the purposes of this case, that ORS 366.380(9) is free from constitutional defect, we turn to the question of the applicability of the statute to the facts of the case. The landowner contends that even if constitutional ORS 366.380(9) does not deny recovery of costs because the award exceeded the Commission's offer by the amount of the interest allowable and allowed in the judgment. This contention cannot be sustained. Had the landowner accepted the original offer, she could have placed the money at interest in November, 1959, had she so desired. Interest from January 31, 1960, does not make the award greater than the offer. Interest is not assessed by the jury in Oregon, unless the formality of signing the verdict is considered to be a judicial act by the jury. Even if it had been omitted from the form of the verdict, interest would have run as a matter of law. Interest follows as a matter of course from the right of the landowner to be placed in as good a position as money can accomplish, as of the date of the taking....