State v. Pacific Shore Land Co.

• Decision Date: 14 April 1954
• Citation: 201 Or. 142,269 P.2d 512
• Parties: STATE v. PACIFIC SHORE LAND CO. et al.
• Court: Oregon Supreme Court

Page 512

269 P.2d 512

201 Or. 142

STATE v. PACIFIC SHORE LAND CO. et al.

Supreme Court of Oregon, Department 1.

Argued and submitted March 10, 1954.

Decided April 14, 1954.

Ralph Wyckoff, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., C. W. Enfield, Asst. Atty. Gen., and Leonard I. Lindas, Oregon City.

David M. Spiegel, Portland, argued the cause for respondent. On the brief were Lenske, Spiegel, Spiegel, Martindale & Lezak, Portland.

Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is a condemnation action brought by the state of Oregon through its Highway Commission, as plaintiff, against Pacific Shore Land Co., a corporation, Maurice Andersen Edward Bennett, and Lincoln county, a political subdivision of the state of Oregon, as defendants, to condemn for highway purposes certain lands owned by defendants in Lincoln county. All defendants, except defendant Pacific Shore Land Co., defaulted, their default being duly entered of record. Judgment was entered in favor of defendant Pacific Shore Land Co.; plaintiff appeals therefrom.

In its complaint plaintiff particularly described two parcels of land owned by defendant, designating them as Parcel No. 1 and Parcel No. 2, and prayed for the condemnation thereof. Upon a preliminary hearing before the court, at which evidence was introduced, the question of the necessity for the acquisition of Parcel No. 2 was considered, and under date of May 26, 1952, the court entered the following order:

'It is further Ordered and Adjudged that the necessity for the acquisition of the said Parcel Number 2, as described in the plaintiff's complaint, has not been shown and that the said resolution of the State Highway Commission is not sufficient to authorize the acquisition of the said Parcel Number 2, and that the plaintiff is without authority under the pleadings and the resolution to proceed with the acquisition or condemnation of the said Parcel Number 2, and that the issue relative to the taking of the said Parcel Number 2 be, and hereby is, withdrawn from any further proceedings herein.'

Thereafter the trial proceeded before court and jury as to Parcel Number 1. Based upon the jury's verdict, judgment was entered in favor of defendant for the sum of $5,000, with interest, together with the additional sum of $1,000 as a reasonable attorney's fee, and costs and disbursements. By this final judgment, Parcel No. 1 was condemned, and plaintiff's complaint was dismissed as to Parcel No. 2.

On February 25, 1946, the Highway Commission adopted a resolution referring to 12 separate tracts of land owned by the several persons particularly named therein. Designated among these tracts of land as Parcel No. 12 is the description of a single unit of land comprising 26.88 acres owned by defendant. The resolution specifically declared the necessity and purpose of the acquisition of defendant's land to be for 'right of way' purposes in connection with the relocation of a portion of the Oregon coast highway in Lincoln county.

On March 23, 1946, the complaint in this action was filed, with the said resolution attached as an exhibit and made a part of the complaint. However, the land sought by the complaint consisted of two separate parcels of approximately 9 acres each, one particularly described and designated as Parcel No. 1, and the other described and designated as Parcel No. 2, as before noted. From the particular descriptions of these separate parcels, they may be identified as parts of the total acreage set forth in the resolution.

In its brief plaintiff states:

'The issue presented by this appeal is whether it was proper for the Trial Court to segregate 8.7 acres [Parcel No. 2] of the total 17.65 acres sought and dismiss such portion of plaintiff's complaint as might pertain to these 8.7 acres.'

It should be stated that the hearing before the trial court upon the necessity and propriety of the acquisition of Parcel No. 2 was held pursuant to the agreement of the parties, and without intervention of a jury.

Before discussing the merits of this controversy, we will dispose of plaintiff's contention that defendant's answer fails to state facts sufficient to constitute a defense. Without going into details, we simply state our conclusion that the answer contains denials and affirmative allegations which present issuable facts; the affirmative allegations are much more than mere conclusions. They are sufficient to present the legal and factual questions that must be determined in this case. Our conclusion does not in any way conflict with the well-reasoned opinion in City of Eugene v. Johnson, 183 Or. 421, 192 P.2d 251. We pass this contention of plaintiff without further comment.

As point II under its assignment of error that the trial court erred in dismissing a portion of plaintiff's complaint, plaintiff states:

'Assuming the question of necessity to have been raised there is no evidence to support a finding that the State Highway Commission was guilty of bad faith or abused its discretion.'

This contention requires an examination of the record in the case. Upon the hearing before the trial court, the resolution adopted by the Highway Commission was first offered in evidence. The parts of that resolution which are material to our discussion are:

'1. That the Commission does hereby find and declare that the parcels of real property hereinafter described are each necessary for the accomplishment of the purposes hereinafter expressly and specifically set forth, which said real properties and the specific purposes for which the same are being acquired are described as follows, to wit:

'* * * [Each parcel of land is then separately described, with the name of the owner; and with the exception of the first three tracts described, each description is followed by the words: 'which property is being acquired for right of way purposes in connection with the Oregon Coast Highway.' The first two properties described are required for right of way purposes in connection with the Tiller-Trail Highway. At the end of the description of the third property described is this statement: 'which property is being acquired for the purpose of securing roadbuilding materials therefrom in connection with the Tiller-Trail Highway'.]

'That the Commission does hereby find and declare that each of the said described parcels of real property is necessary and acquisition of the same by the State is required for the specific purposes hereinabove set forth, and the said properties are being acquired for the express and specific purposes in this resolution set forth.'

Plaintiff also introduced in evidence a highway map drawn to scale and covering the lands owned by defendant. This is an official map prepared for the Highway Commission. The 'right of way' for the Oregon coast highway is clearly outlined on the map, the center line being delineated, and the land on each side thereof within the right of way being plainly marked. The map also designates the land owned by defendant and within the right of way as 'Parcel No. 1-8.95 ac.' It further shows the location of Parcel No. 2-8.70 acres. On the east, Parcel No. 2 adjoins the west boundary line of the marked right of way, but it is not within the right of way.

Defendant introduced in evidence another highway map procured from the Highway Commission, which latter map covered the same lands shown in the other map above described. This map also contains the designations 'Parcel 1-8.95 ac. and Parcel 2-8.70 ac.' However, on that part of the map showing Parcel 2 appears the following statement: 'Parking and Picnic Area.'

Plaintiff called B. A. Martin, assistant chief locating engineer of the Highway Commission, as a witness. Martin had run a preliminary line for this highway in 1936 but he had nothing whatever to do with the final laying out and construction of the road. Over objection, the witness was permitted to testify on direct examination as follows:

'Q. Mr. Martin, you're familiar with what has been designated as Parcel 2? A. I am, yes.

'Q. In your opinion, is Parcel 2 necessary for right of way purposes by the state of Oregon? A. It is.

* * *

* * *

'Q. Why, in your opinion, Mr. Martin, is that tract of land which is designated as Parcel 2 necessary for right of way purposes? A. For drainage is the most important part of it. To my estimation that country and the line through there is a very broken bad piece of ground full of lakes, sliding. Before anything was ever done to it, before we ever went in there with the highway, the ground was breaking down, it wouldn't stand up of its own weight. It was necessary to put in drainage in order to try to stabilize the ground, the surrounding terrain. I couldn't say as to what ditches or subdrainage has been done with it because I wasn't on the construction, but at the time it was to provide for these underground drainages and protect our existing highway from any chance of changing the topography or the terrain after the highway was built, which would affect the highway. I think that we have effected the terrain on both sides of the highway with this new highway that we built.

'Q. Then, as I understand your testimony, Mr. Martin, when you located this highway or you formed your opinion as to its necessity, you hadn't in mind no set drainage plan? A. Oh, very definitely we had a set drainage plan at the time it was located, and I think that all of the old, my old, records on it will show very definitely the ditches and the subdrainage that was intended to be used at this location. I'm saying that I don't know whether they followed my plan or not because I wasn't on the construction of it, I don't know. * * *.'

Upon cross-examination, the witness testified:

'Q. Well, Mr. Martin, this land then that we are speaking about, Parcel 2, lies next to the highway as it was finally located? A. Yes.'

The effect of...