Chapter § 15.14

• Jurisdiction: Oregon

§ 15.14 TAKINGS VERSUS OTHER LEGAL THEORIES

At the outset, a property owner aggrieved by a government action should determine what other compensation remedies are available for government land use restrictions, such as torts or additional constitutional claims. See § 15.14-1 (tort), § 15.14-2 (other constitutional theories).

§ 15.14-1 Tort

The line between a taking under Article I, section 18, of the Oregon Constitution and a tort is not always clear. This blurred line typically appears in cases involving physical invasions, such as flooding. Under Article I, section 18, distinguishing physical takings from torts involves a two-part inquiry. First, a taking results only when the government intends to invade a property interest such that the invasion is the direct, natural, or ordinary result of an authorized activity, as opposed to an injury due to negligence or unauthorized tortious conduct by a government employee. Vokoun, 335 Or at 29-30; see also Patterson v. Horsefly Irrigation District, 157 Or 1, 18-19, 69 P2d 282 (1937) (if damage is caused by negligence, then a plaintiff has a negligence claim, whereas if damage to property is "the necessary effect of [the government's] permanent maintenance and operation of [the project or activity] in a lawful or careful manner," then the plaintiff has a takings claim); Gearin v. Marion County, 110 Or 390, 401-02, 223 P 929 (1924) (mere tortious interference with property by a government entity does not constitute a taking; a taking occurs only when property is appropriated by a government entity and put to public use); Worman, 223 Or App at 236-37 (an allegation that a county employee negligently sprayed the plaintiffs' property did not state a claim under Article I, section 18; "nothing about an accidental spraying gives rise to the inference that the county intended to take plaintiffs' property"); Dunn, 355 Or at 361 (the city's "hydrocleaning" of a sewer line causing raw sewage to back up through the plaintiff's bathroom fixtures may have been negligent but was insufficient to support a takings claim because there was no "evidence that the sewage backup into plaintiff's house was the necessary, certain, predictable, or inevitable result" of the city's hydro-cleaning operation).

Second, to be a taking, the invasion must be substantial. Hawkins, 315 Or at 68-69 (the test for whether damage to property constitutes a taking is whether there has been a "substantial interference" with use and enjoyment of...