Chapter § 15.2

• Jurisdiction: Oregon

§ 15.2 ARTICLE I, SECTION 18: INTRODUCTION

Article I, section 18, of the Oregon Constitution requires the state to pay "just compensation" if it takes private property for public use. The inherent power by which a sovereign state takes private property within its jurisdiction for public use or benefit is known as "eminent domain." Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 187 n 1, 935 P2d 411 (1997); State by & through Department of Transportation v. Lundberg, 312 Or 568, 571 n 1, 825 P2d 641 (1992) (the state takes private property for public use through "the power inherent in a sovereign state of taking or of authorizing the taking of any property . . . for a public use or benefit").

Article I, section 18, provides in its entirety as follows:

Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.

In Oregon,

government action affecting private property exists along a continuum. At one end is actual physical appropriation of real or personal property, which obviously is the exercise of the power of eminent domain and triggers the obligation of just compensation. At the other end of the continuum is the exercise of government's authority to promote the health and safety of the populace— what is commonly referred to as exercise of the "police power." Those exercises are not compensable takings of "private property for public use" under Article I, section 18.

Robertson v. City of Turner, 187 Or App 702, 706-07, 69 P3d 738, rev den, 336 Or 92 (2003) (footnote and citations omitted).

§ 15.2-1 Condemnation and Inverse Condemnation

Condemnation is the process by which an authorized governmental body affirmatively exercises the power of eminent domain. The statutory procedures by which Oregon state and local governments may exercise the power of eminent domain are set forth in ORS chapter 35. See ORS 105.855.

Inverse condemnation, on the other hand, is "[a]n action against the government to recover the value of private property that the government has taken without first filing condemnation proceedings." Vokoun v. City...