Miller v Jones, 256 Or App 392 (2013), Sercombe, J. Plaintiffs brought a declaratory judgment action to determine the validity of an agreement they claimed created an easement for an irrigation pipeline through Defendants’ property. Defendants attempted to defeat that claim by asserting that the agreement between the previous property owners was not an easement but a “license” between the two previous property owners. Alternatively, the defendants argued that if the agreement were an easement, it was not appurtenant (i.e. the easement was not attached with ownership of the land), but rather personal; thus the right to use the easement did not transfer when the property was conveyed to plaintiffs. The court considered the plain language of the document and found that the agreement was indeed an easement because it “granted a right of one person to do certain acts on land of another” as it provided the defendants the right “to service and maintain” an existing underground irrigation pipeline on the property and “access [of the pipeline] through” the subject property. These provisions plainly created an easement granting rights on property of another. The court construed the plain language of the agreement, the use of the words consistent with easement language, and the purpose of the agreement and concluded that the agreement was an easement that attached to the land granting plaintiff the right to use, service and maintain its pipeline over defendants property.
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Easement Cannot be Defeated by Assertions that it is a License or Contract
Victory for Property Owner in Unusual Condemnation Case
The City of Harrisburg placed a municipal water well on undeveloped property owned by the Defendant property owner, Ms. Leigh. Shortly thereafter, the City discovered that they placed the well on her property but they did nothing. Several years later Ms. Leigh decided to sell the property and her broker discovered the well and approached the City with the situation. The City responded to her discovery of the well by suing her for adverse possession of her property, instead of offering to pay her fair market value of her property. The City lost and she won an ejectment action – which resulted in the trial Court opinion that the City was not entitled to legal possession or any interest in the property and ordering the City to vacate the property and decommission the well by September 1.
Months later, on a Friday, August 28, the City offered to purchase her property for $7,425. When she rejected their offer, they filed an emergency condemnation proceeding the following Tuesday, September 2. The dates here are important.
Ms. Leigh’s position at trial was that, as a matter of law, as of September 2, (one day after the well was to have been decommissioned) Ms. Leigh owned the well because the trial court’s judgment specifically held that the City had no legal right to Ms. Leigh’s property and were required to decommission the well by September 1st , which had not occurred. The trial court rejected Ms. Leigh’s legal argument and Ms. Leigh received only compensation for the land and not for the well.
Ms. Leigh appealed to the Oregon Court of Appeals, which agreed that the ejectment judgment conclusively established that Ms. Leigh was the owner of the property, including its improvements. Accordingly, she was entitled to compensation for the value of the property, as improved. A public body that takes private property for public use must pay the property owner “just compensation”. OR Const, Art I § 18. The Court of Appeals held that the prior judgment conclusively held that the City was “wrongfully withholding possession of the Property”, and therefore, the value of the property was measured as of September 2, 2008 – the date the condemnation action was commenced and the property included compensation for the well because the well had not been decommissioned by September 1. The case was remanded back to the trial court for entry of judgment for Ms. Leigh.
(Property owner was represented by Garvey Schubert Barer.)
Texas Court upholds Eminent Domain for Canadian Oil Pipeline
TransCanada, a Canadian energy company has been granted eminent domain rights to take a 50 foot easement through a property owners farm in Texas. The issue before the local court was whether TransCanada had “common carrier” status for the Keystone XL project, which would allow it to use eminent domain to acquire property for the project when the property owner would not agree to grant an easement. The case highlights an unusual loop hole in the Texas law which simply allows a company to claim its status as a 
common carrier on a simple one page form to avail itself of condemnation authority.
The common carrier process has recently been challenged successfully in the State Supreme Court where the court refused the pipeline company’s condemnation claim. Texas Rice Land Partners v. Denbury Green.
“Private property is constitutionally protected,” Justice Willett wrote, “and a private enterprise cannot acquire condemnation power merely by checking boxes on a one-page form.”
Most states, including Oregon and Washington, have strict statutory provisions granting condemnation authority and procedures to establish just compensation for property acquired for a public use.
This has been a controversial project due to its scope and the type of product being disturbed through the pipeline. The pipeline project history can be viewed at here.
Truck Stop Owner Entitled to Compensation for Closure of Highway Exit in South Dakota
In an interesting case in South Dakota the owners of a truck stop were entitled to compensation for closure of a highway exit ramp when the State closed by condemnation the exit ramp to the property during a project. It is fundamental condemnation law that a government may regulate its streets for public safety and that a property owner is not entitled to compensation for closure of public street. This is referred to as the government’s police power. (more…)
Modera Hotel Awarded $756,000 Just Compensation for Closure of Access to a Portland City Street
A jury awarded the Modera Hotel $756,000 for diminution in value to the hotel property for TriMet’s action in closing an access onto the city street for expansion of its light rail through downtown Portland. The case is unusual because closure of an access by a condemning authority is usually considered to fall under the condemning authority’s “police power,” that is to promote public safety, and is not generally a constitutional taking that results in compensation to the property owner. However, the Hotel was able to rely on a city ordinance that provides that when a City or Mass Transit restricts the use of a street traffic lane adjacent to a commercial property the City or Mass Transit shall be liable for and pay the difference between the fair market value of the property prior to the restriction and after the restriction. The Court of Appeals affirmed the jury award. (more…)
City Must Pay For Damages When Sewer Water Gushed Into Family Home
Sharon Dunn v City of Milwaukie, Court of Appeals, A139386, February 23, 2011- City of Milwaukie appealed a judgment awarding a homeowner $58,000 in just compensation when her home was damaged after raw sewage spewed from the toilets and faucets as a result of City workers performing maintenance by blasting water into the sewer line to clean the lines. The homeowner had sewer water dripping from her ceilings and flowing over the floor after the cleaning of the sewer lines in her neighborhood. The homeowner sued the City for the damages to her home claiming that the City inversely condemned, or had taken her property, when the sewer water entered her home and caused damages to the fair market value of her home. The Court of Appeals reviewed the inverse condemnation claim and applied the test of whether the City’s actions had substantially interfered with the use and enjoyment of her property. The proper test was whether the use and enjoyment was sufficiently direct, sufficiently peculiar and of sufficient magnitude to support the conclusion that the interference had reduced the fair market value of the home. The question on Appeal included if the jury instructions had sufficiently addressed, as an element of the inverse claim, that the government intended to have taken the property by its actions. The Court of Appeals held that homeowner had presented a legally sufficient claim of inverse condemnation and the jury had been properly instructed on the law.
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