Willard v. City of Eugene

• Decision Date: 01 June 1976
• Citation: 25 Or.App. 491,550 P.2d 457
• Parties: William E. WILLARD and Velita M. Willard, Appellants, v. CITY OF EUGENE, Respondent.
• Court: Oregon Court of Appeals

Page 457

550 P.2d 457

25 Or.App. 491

William E. WILLARD and Velita M. Willard, Appellants, v. CITY OF EUGENE, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Feb. 20, 1976.

Decided June 1, 1976.

R. Scott Taylor, Veneta, argued the cause for appellants. With him on the briefs were Taylor & Taylor, Veneta.

Richard Roseta, Eugene, argued the cause for respondent. On the brief were Jaqua & Wheatley and John E. Jaqua, Eugene.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

FORT, Judge.

Plaintiffs brought an action in inverse condemnation against the City of Eugene. The trial court sustained the city's demurrer to plaintiffs' third amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiffs' appeal presents the question whether an alleged wrongful abatement of property as a nuisance gives rise to a cause of action in inverse condemnation.

In their final complaint plaintiffs alleged that they owned a house in Eugene, that in January 1970 the city council ordered the destruction of the house, and that during March 1970 the house was demolished, and without the plaintiffs' consent or knowledge. Plaintiffs then alleged:

'Plaintiffs' property herein above mentioned was destroyed and taken by Defendant for the public purpose of eradicating a dangerous building which the Defendant felt presented a fire and health hazard.'

Plaintiffs' only allegation that the abatement of their house was wrongful was that the demolition was done without their knowledge. Under ORS 16.120, requiring liberal construction of pleadings, we find that this allegation is sufficient to raise for trial the issue whether the abatement was done with proper notice. It does not answer the question whether a wrongful abatement gives rise to a cause of action for inverse condemnation.

An action for inverse condemnation is based on Article I, Section 18 of the Oregon Constitution, which states:

'Private property shall not be tkaen for public use * * * without just compensation * * *.'

This provision limits the state's inherent power of eminent domain so that it may take private property only for a public use and it must pay compensation for the property it takes. Smith v. Cameron, 106 Or. 1, 8--9, 210 P. 716, 27 A.L.R. 510 (1922). In an action for inverse condemnation the property owner alleges that the state has taken his property without compensation.

The demurrer was sustained on the basis of defendant's contention that to state a cause of action in inverse condemnation plaintiffs were required to allege facts sufficient to show that the property was taken for a public use and that they had not done so. On appeal, plaintiffs contend that such an allegation of public use is not required or, in the alternative, that their allegation of a wrongful abatement of their property is sufficient to state a public use.

Plaintiffs claim a constitutional right to compensation. We conclude that Oregon Constitution, Art. I, § 18, as well as the Oregon cases, requires that in order to state a cause of action in inverse condemnation plaintiff must allege facts sufficient to show his property or an interest therein was taken for a public use. A right of action in inverse condemnation is linked to the state's power of eminent domain:

'* * * (W)here the state exercises its power of eminent domain without bringing an action to condemn, the owner of the property taken may himself go into court and sue to recover its value and certain damages; for to deny him this right would be to deprive him of the protection guaranteed by Article, I, Section 18, of the state constitution. * * *' Cereghino v. State Highway Com., 230 Or. 439, 444, 370 P.2d 694, 696 (1962).

Since the state may exercise its power of eminent domain only for a public purpose (Smith v. Cameron, supra), inverse condemnation actions may be brought only where the state has taken property for a public use.

This requirement was set forth in Tomasek v. Oregon Highway Com'n, 196 Or. 120, 248 P.2d 703 (1952):

'To support an action for compensation or damages such as we have here, three things must concur and combine; viz., (1) there must be a taking of private property for a public use by (2) a state agency authorized to exercise the power of eminent domain, and (3) it must be property that is subject to be taken for a public use. * * *' 196 Or. at 147, 248 P.2d at 716.

We now turn to the question whether an improper abatement, such as plaintiff have alleged, constitutes public use. Plaintiffs agree that an abatement of their house as a nuisance according to proper procedure would have constituted an exercise of the city's regulatory or police power and would not be a taking for public use. The two powers are distinguished as follows: under its eminent domain power the state may acquire property for the use and bendefit of the public; under its police power the state may regulate or restrict activities or use of property which are harmful to the public. 11 McQuillin, Municipal Corporations 276, § 32.04 (3d ed. rev. 1964); 1 Nichols, Eminent Domain 1--104, 1--123, §§ 1.42, 1.42(2) (3d ed. rev. 1975).

The plaintiffs' complaint alleges that the city was attempting to regulate a harmful use or activity on plaintiffs' land. There is no allegation that the city acquired any right or thing that the public could use or that its actions in removing the house were related to or in pursuance of its eminent domain power. We conclude that an action for inverse condemnation will not lie under the facts here alleged.

Plaintiffs contend that their situation is analogous to those of other Oregon cases in which inverse condemnation has been upheld. We disagree. The leading Oregon cases in which a cause of action in inverse condemnation has been found involve situations in which the state had been conducting an activity for the public benefit in pursuit of which it had exercised or could have exercised its eminent domain powers. In each of those cases the plaintiff's property was located on the fringes of that activity and was seriously affected by it. In Tomasek v. State Highway Com'n, supra, and in Morrison v. Clackamas County, 141 Or. 564, 18 P.2d 814 (1933), the governing body had built a bridge or a jetty to protect a bridge with resulting changes in river currents which led to flooding and destruction of the plaintiffs' lands. In Cereghino v. State Highway Com'n, supra, the relocation of a highway had resulted in similar flooding, silt deposits, and washing away of topsoil. In Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962), the plaintiffs were held to have stated a cause of action when they alleged that because of continuing noise, the defendant's airport operation was extending its ownership rights beyond the property actually...