State By and Through State Highway Commission v. Superbilt Mfg. Co.
| Decision Date | 06 April 1955 |
| Citation | 204 Or. 393,281 P.2d 707 |
| Parties | STATE of Oregon, By and Through its STATE HIGHWAY COMMISSION, composed of Ben R. Chandler, Charles H. Reynolds, and M. K. Mclver, Appellant, v. SUPERBILT MANUFACTURING CO., Inc., an Oregon Corporation, Respondent, and Milton Tarlow, A. Arbitman and David H. Greenberg, Executors of the Estate of Jacob Goldeen, deceased, also known as James Goldeen; Pansey Burton Coan, Executrix of the Estate of Ralph A. Coan, deceased; Abe Eugene Rosenberg, Marvin S. Swire, and Burton L. Coan, doing business as Coan & Rosenberg, Defendants. |
| Court | Oregon Supreme Court |
Charles C. M. Peterson, Salem, for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., C. W. Enfield, Asst. Atty. Gen., and Leonard I. Lindas; Salem.
S. J. Bischoff and George W. Mead, Portland, for respondent.
Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, JJ.
This is a condemnation action brought by the state of Oregon, by and through its Highway Commission, as plaintiff, against Superbilt Manufacturing Co., Inc., an Oregon corporation, and others, as defendants, to condemn certain real property for right of way purposes in the construction of a new state highway known as 'The Banfield Expressway'. Upon the trial the sole factual question at issue was the sum of money to be paid defendant Superbilt Manufacturing Co., Inc. (hereafter referred to as Superbilt), as just compensation for the taking. Based upon the jury's verdict, judgment was entered in favor of defendant against plaintiff in the sum of $385,000, with interest thereon at the rate of 6 per cent per annum from the date of judgment until paid, together with the further sum of $30,000 as a reasonable attorney's fee.
On this appeal we are concerned only with the respective claims of plaintiff and the defendant Superbilt.
The land involved is located on the north side of N.E. Holladay street, between N.E. 25th and N.E. 26th avenues, in Portland, Oregon. The land lies with 200 feet fronting on N.E. Holladay street, and is slightly over 100 feet deep to the railroad right of way of the O. W. R. & N. R.R. Company. The tract comprises approximately .52 of an acre and is hillside property.
The land is improved with a building of brick, masonry and frame construction, the west one-half of which was built originally about 1907, and the east one-half of which was erected originally about 1913, both as three-story structures in which, subsequent to 1920, two additional wood floors were inserted, thereby making it a five-floor building.
The two original parts of the building were constructed by the Blake-McFall Company as a paper warehouse. The building was later converted into a furniture and manufacturing plant, and was so used by the defendant.
The building is equipped with all machinery and apparatus necessary to the conduct of the business of manufacturing and selling furniture and mattresses, and, as so equipped, its highest and best use is that of a furniture and mattress manufacturing plant.
This action was brought pursuant to the provisions of ch. 366 ORS and related sections of the highway code. No question is raised as to the regularity of the proceedings taken by the Highway Commission as a preliminary to the commencement of the action, nor as to the public necessity of the appropriation.
Article 1, § 18, Oregon constitution, provides:
'Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; * * *.'
The statute, § 100-116, O.C.L.A., ch. 283, Oregon Laws 1947, ORS 366.375, under which plaintiff is proceeding provides in part that the State Highway Commission may, under certain conditions which are specified, commence an action in the circuit court:
'* * * for the condemnation of such interests as such owner or owners may have in said real property, * * *, and for determining the compensation to be paid therefor, and the damages, if any there be, for the taking thereof.'
Plaintiff's complaint is in the usual form, first alleging a compliance by it with all conditions requisite to its authority to maintain the action, and the public necessity of the appropriation. In paragraph III of the complaint it is alleged in particular:
'That the real property hereinafter described is necessary and required for right of way purposes and is required for the proper construction of said highway by the State, which real property is described as follows, to-wit: [Property is described by metes and bounds].'
By its amended answer defendant admitted all the allegations of plaintiff's complaint. For an affirmative answer and defense, defendant in part alleged:
'II
'That defendant Superbilt Manufacturing Co., Inc. is engaged in the business of manufacturing and sale of upholstered and other furniture, mattresses and bed springs and for that purpose, operates a complete factory upon the real property described in the complaint and its appurtenances; that it has maintained and operated said factory on said real property for a great many years prior to the commencement of this action; that the said building and its appurtenances constructed on the aforesaid real property, is especially constructed, designed, equipped and arranged for the use thereof as a manufacturing plant for the manufacture of the aforesaid merchandise and the display and sale thereof to the trade and by reason of such construction, arrangement, equipment and design and its appurtenances, the highest and best use to which the said property is adaptable and useable, is for the manufacture, display and sale of the aforesaid merchandise; that the said buildings, located on said real property, contain in excess of eighty thousand square feet of floor area; that it is of masonry and mill construction; that the location of said property and the improvements thereon is within the proximity of the metropolitan area of the City of Portland, Oregon; that it is conveniently located with respect to the availability of employees for the operation of the plant and with respect to accessibility of retail merchants who can quickly and conveniently call at the said property to inspect and purchase the merchandise produced by the defendant; that the property adjoins the right of way of the Union Pacific Railroad and has thereon a spur railroad trackage, making the plant of the defendant accessible by transportation facilities for both raw materials and its finished products.
'III
'To make the improvements on the said real property adaptable for the efficient operation of a plant for the aforesaid purposes, defendant has installed in said plant, fixtures, improvements and appurtenances to adapt the building for the manufacture, display and sale of furniture, mattresses and springs, as aforesaid, for use, as aforesaid, which is the highest and best use to which said property could be put; that the improvements, appurtenances and installations contained therein, including the following [sic]:
'(a) Fluorescent fixtures.
'(b) Automatic sprinkler system for fire protection.
'(c) Air conditioning system.
'(d) Steam heating system units and wall type convectors.
'(e) Fire proof room for the protection of painting materials.
'(f) Blower system for dust collection and control.
'(g) Conveyors.
'(h) Intercommunication system with necessary wiring installed.
'(i) Public address system with wiring and conduits installed.
'(j) Electric clock system with wiring and conduits installed.
'(k) Railroad trackage.
'(l) Sample rooms.
'(m) Extra heavy concrete floors and bases to carry and support heavy machinery.
'(n) Special wiring conduits and power supply system especially designed for the operation of the machinery throughout the plant.
'(o) Bins for storage of materials.
'(p) Cutting tables.
'(q) Shafting, belting motors and other installations for the transmission of power throughout the plant.
'(r) Dust collecting bags and bins, and many other installations and items of equipment for the necessary and convenient operation of the said plant.
'IV
'That in addition to the improvements and appurtenances and installations described above, defendant has installed in said buildings and on said real property, numerous items of heavy, complicated and intricate machinery, to-wit:
"1-Cushion Filler 1-Chair Press
1-Cushion Closer 1-Chair Clamp
1-Hassock Press 1-Daveno Air Press
1-Chain Hoist Lift 1-Spot Welder
1-Arm Press 1-Daveno Frame Air
1-Spot Welder Press
1-Fan Assembly 6-Helical Weaving
1-Cotton Picker- Machines
Willower 1-Ferrell Air
1-Bostitch Wire Clampair
Stitcher-150 1-Multiple Boring
1-Quilting Machine Machine
4-Cotton Felting 1-Hair Picker
Machines 1-Double Head Planer
2-Mattress Fillers 1-36" Band Saw
1-Border Machine 2 <> 30" Band Saws
1-Automatic Coiler 1-k1 American Table
1-Baler Saw
1-Cotton Tuffting 1-1 1/4" Spindle Shaper
(sic) Machine 1-Dowel Driving
1-Button Tuffter Machine
(sic) 1-Triple Drum
1-Tape Edge Sander
Machine 3-Spindle Carvers
2-Roll Edge 1-Belt Flat Sander
Machines 1-Tongue and Groove
1-Stitcher Machine Machine
1-Air Press 2-Excelsior Machines
that in order to remove the same, the said machinery must be disassembled and taken apart because it is incapable of being moved in the present condition; that the said machinery must be removed and re-installed and re-assembled by the defendant in another location; that a great deal of said machinery consists of many delicate parts and must be taken apart, moved and re-assembled by men who are especially trained in the assembly and operation of such equipment and the...
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