State Highway Commission v. Clackamas Water Dist.

• Decision Date: 02 June 1967
• Citation: 247 Or. 216,428 P.2d 395
• Parties: State of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, Kenneth N. Fridley and David B. Simpson, Respondent, v. CLACKAMAS WATER DISTRICT, a municipal corporation, Appellant.
• Court: Oregon Supreme Court

Page 395

428 P.2d 395

247 Or. 216

State of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, Kenneth N. Fridley and David B. Simpson, Respondent, v. CLACKAMAS WATER DISTRICT, a municipal corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued and submitted April 5, 1967.

Decided June 2, 1967.

Michael J. Walsh, Portland, argued the casue for appellant. With him on the briefs were Shuler, Rankin, Myers & Walsh and Howard A. Rankin, Portland.

J. Robert Patterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and G. E. Rohde, Asst. Atty. Gen., and Chief Counsel for the Oregon State Highway Commission, Salem.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and REDDING, JJ. O'CONNELL, Justice.

This is an action by the State Highway Commission to recover the cost of relocating defendant's water pipeline necessitated by the construction of a section of Cascade Highway in Clackamas County. Defendant appeals from a judgment for plaintiff.

In 1927 defendant water district obtained permission from Clackamas County to lay water pipes along the right of ways of certain county roads. The permission granted was subject to the condition that the 'District shall move or relay any pipes that may in the future interfere with any change of grade or relocation or other work on any Road * * *.'

In 1960 plaintiff adopted a resolution providing for an extension of the Cascade Highway, a part of which was to cross the county roads in which defendant had placed its pipelines. Plaintiff made demand upon defendant to relocate its pipeline at its own expense. Defendant refused, whereupon plaintiff effected the relocation and brought the present action to recover the cost of relocation.

Defendant contends that the installation of its pipeline pursuant to the grant of permission from the county vested in defendant a property right which could not be taken by plaintiff without just compensation.

Defendant concedes that it would have had the obligation to bear the cost of relocating its pipeline if the county rather than the state had made the change in the road. Defendant contends, however, that the state does not stand in the shoes of the county and has the same obligation as any other person to pay for the relocation of defendant's pipeline. Plaintiff contends, in effect, that the state is the alter ego of the county and that the county's interest in right of ways along county roads inures to the state, including the right to require relocation of pipelines.

The relationship between the state and the several counties has been explained in a number of our previous cases. In MacKenzie v. Douglas County, 91 Or. 375, 379--380, 178 P. 350, 352 (1919), this court said:

'* * * (I)t may not be inappropriate to consider the relation of a county to the state. We think the decisions may be said to be uniform that a 'county' is not an independent governmental entity--is not even a corporation in the same sense that municipalities are corporations. It is a Quasi corporation created by legislative fiat for governmental purposes and subject to the legislative will in all matters not prohibited by some constitutional restriction.' ¹

In State ex rel. Public Welfare Comm. v. Malheur County Court, 185 Or. 392, 409, 203 P.2d 305, 313 (1949), it was observed that '(a) county is merely a political agent of the state created by law for governmental purposes, invested with legislative powers and charged with the performance of duties for the state. Yamhill County v. Foster, 53 Or. 124, 99 P. 286; Schubel v. Olcott, 60 Or. 503, 120 P. 375.'

In Powell Grove Cem. Ass'n v. Multnomah County, 228 Or. 597, 600, 365 P.2d 1058, 1059--1060 (1961), the county agreed with a cemetery corporation that it would care for and preserve an existing cemetery and that the cemetery would 'not be removed from its present location.' Thereafter the legislature enacted a statute authorizing counties to vacate cemeteries over which they had control. The court held that in spite of the agreement the county had the power to abandon the cemetery. In holding that the contractual rights must give way to the welfare of the public, the court said:

'We will assume for purposes of this opinion that an agreement as alleged by plaintiff was entered into between the parties. This contract, of course, is valid between the parties for all purposes, except it cannot be considered as a binding force to prevent the future exercise of the state's police powers. These powers cannot be 'bargained or contracted away.' Laurel Hill Cemetery v. City & County of San Francisco, 152 Cal. 464, 475, 93 P. 70, 74, 27 L.R.A., N.S., 260.'

The court went on to explain that

'* * * counties are subdivisions or agencies of state government, created by legislative fiat for political and civil purposes, and they are controlled and derive their powers, except as provided in the constitution, through acts of the legislature.'

The vicarious character of the county's authority described in the foregoing cases must be read into the grant of permission from Clackamas County to defendant to lay its pipeline. That grant was made by the county as an 'agent of the state.' Consequently, the condition in the grant requiring defendant to relocate its piepline in the event of a relocation of the road inured to the state of Oregon, the principal. Even if the express condition in the grant were read as...