Tomasek v. State
| Decision Date | 24 September 1952 |
| Citation | 248 P.2d 703,196 Or. 120 |
| Parties | TOMASEK v. STATE. * |
| Court | Oregon Supreme Court |
Ralph Wyckoff, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were George Neuner, Atty. Gen., C. W. Enfield, Asst. Atty. Gen., and Fred A. Miller, Asst. Atty. Gen.
Brazier C. Small, of Salem, argued the cause and filed a brief for respondent.
Before BRAND, C. J., and HAY, ROSSMAN, LUSK, and TOOZE, JJ.
This is an action brought by Karel Tomasek, as plaintiff, against the state of Oregon, by and through Ben R. Chandler, Charles H. Reynolds, and M. K. McIver, constituting and acting as the Oregon State Highway Commission, as defendant, to recover the reasonable value of certain real property alleged to have been taken by defendant for public use. The action was tried to a jury, and a verdict in favor of plaintiff against defendant for the sum of $13,500 was returned. Judgment in favor of plaintiff was entered accordingly. Defendant appeals.
On April 25, 1950, plaintiff filed in the circuit court for Marion county his amended complaint setting forth his cause of action as follows (formal parts omitted):
'I.
'That during all the times herein mentioned Ben R. Chandler, Charles H. Reynolds and M. K. McIver are, and with their predecessors in office, were the duly acting and qualified Highway Commission of the State of Oregon, and as such have and have had control over all matters pertaining to the selection, establishment, location, construction, improvement, maintenance, operation and administration of state highways and particularly that relocated segment of Highway 99-E and the bridge extending across the Santiam River northwest of Jefferson and southeast of Talbot, connecting Marion and Linn Counties.
'II.
'That on or about July 10, 1945, and for a long time prior thereto, Plaintiff was and still is the owner of the following tract of land, to-wit:
'Beginning at a point 33.55 chains North and 4.47 chains West of the Northwest corner of said Section 33 and running thence East 80 chains; thence South 80 chains; thence West 80.07 chains; and thence North 80 chains to the place of beginning, containing 640.28 acres, said West half containing 320 acres, more or less, situated in Marion County, Oregon.
'III.
'That said land was and is located a short distance down stream from said new highway bridge crossing the Santiam River and on the easterly side and adjacent to the old river channel and was, before the erosion and damage hereinafter described, rich fertile river bottom land.
'IV.
'That prior to the construction of the new highway grade and road bed for the new highway and highway bridge, plaintiff's said land extended to the old channel of the river which is the boundary line between Marion and Linn Counties.
'V.
'VI.
'That during all the times herein mentioned said highway bridge, said highway grade and road bed were constructed, owned and maintained by the Defendant and constituted a part of the state highway system of Oregon.
'VII.
'VIII.
'That Defendant constructed said highway grade and road bed which formed the approaches to said highway bridge for the purpose of protecting the said highway by keeping the traveled portion of the road above the high water level, and by doing so causes said water to be dammed and backed up, thus forcing a greatly increased flow of water under the bridge, thereby changing the direction and increasing the velocity of the current of the river during high water periods.
'IX.
'That the aforesaid acts of Defendant were and are the proximate cause of the constricting of the channel of the river and of forcing a much greater volume of water under said bridge during high water periods than did flow in the river channel there before the construction of said highway grade, road bed and bridge, and of the changing of the direction of the current from its former course, and greatly increasing the velocity of the current of the river below said bridge during said high water periods, so that the entire flow of said river has been since said construction and now is being driven and forced into, against and over a large portion of Plaintiff's said land with such force and violence that the surface of the following described portion:
'Beginning at a point where the Northerly bank of the Santiam River intersects the West line of the John M. Harrison D.L.C. No. 56 in Township 9 South, Range 3 West of the Willamette Meridian, Marion County, Oregon; said beginning point being South 0~ 09' West, 4751.50 feet from the Northwest corner of said Harrison D.L.C.; Thence, South 0~ 09' West, 528.50 feet to the Southwest corner of said Harrison D.L.C.; Thence, South 89~ 50' 30"' East, along the South line of said D.L.C. 2632.75 feet to the Southeast corner of the West [East] 1/2 of said D.L.C.; Thence North 0~ 25' West, along the Division line of said D.L.C. 1236.00 feet to a point on the North bank of the Santiam River; Thence, along the North bank of said River as follows:
'North 72~ 24' West, 254.16 feet; North 78~ 09' West, 100.00 feet; North 85~ 52' West, 357.80 feet; South 70~ 53' West, 295.00 feet; South 80~ 20' West, 184.40 feet; South 77~ 47' West, 124.90 feet; South 53~ 20' West, 109.53 feet; South 61~ 44' West, 231.58 feet; South 51~ 18' West, 131.70 feet; South 59~ 12' West, 419.10 feet; South 71~ 57' West, 637.20 feet to the place of beginning, and containing 63.31 Acres, more or less.
'Also, a strip of land 100.00 feet in width, lying all along the North side of the North line of the above described tract, and containing 6.45 acres, more or less.
'Wherefore, Plaintiff demands judgment against the Defendant for the sum of Twenty-five thousand six hundred (25,600.00) Dollars.'
To this amended complaint defendant filed the following demurrer (omitting formal parts):
'Comes now the defendant and demurs to the amended complaint on file herein upon each of the following grounds:
'I.
'That the Court has no jurisdiction of the person of defendant.
'II.
'That the Court has no jurisdiction of the subject of the action.
'III.
'That the Complaint does not state facts sufficient to constitute a cause of action.'
The trial court overruled the demurrer. This ruling by the trial court is the basis of defendant's first assignment of error on this appeal. In presenting its contention to the trial court, as well as in its brief in this court, defendant argued: (1) that the court lacked jurisdiction of the person of the defendant, on the ground that the state of Oregon is immune to suit except in those instances in which it has consented thereto; and (2) that the state of Oregon has not consented to the action at bar.
In overruling the demurrer the able trial judge accompanied the court's order with a memorandum opinion. We shall later have occasion to quote from that opinion.
To the amended complaint defendant filed the following answer (omitting formal parts):
'I.
'Answering paragraphs I and VI of plaintiff's amended complaint, defendant admits the allegations contained therein.
'II.
'Answering paragraph II of plaintiff's amended complaint, defendant denies each and every allegation contained therein, and the whole thereof.
'III.
'Answering paragraph III of plaintiff's amended complaint, defendant denies each and every allegation therein contained, and the whole thereof, except defendant admits that the real property described in paragraph III of said amended complaint is located in a westerly by north direction from the said bridge.
'IV.
'Answering paragraph IV of Plaintiff's amended complaint, defendant denies each and every allegation therein contained, and the whole thereof.
'V.
'Answering paragraph V of the plaintiff's amended complaint, defendant admits that on or about July 10, 1945, defendant began the construction of a new highway bridge across the Santiam River and of a grade and road bed for the said highway; further admits that said road bed formed the approaches to said bridge and extended for several hundred yards on either side of the bridge; and also further admits that the new construction was completed on or about October 1, 1947; but denies each and every other allegation in said paragraph contained, and the whole thereof.
'VI.
'Answering paragraph VII of the plaintiff's...
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Chapter § 15.6
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