Chapter § 15.5

• Jurisdiction: Oregon

§ 15.5 WHAT IS PROPERTY WITHIN THE MEANING OF ARTICLE I, SECTION 18?

To determine whether property has been taken without just compensation, it is first necessary to determine whether a claimed interest constitutes property within the meaning of Article I, section 18, of the Oregon Constitution.

In dicta, the Oregon Supreme Court has looked to the 1828 Webster's Dictionary for the meaning of property in Article I, section 18:

Webster defined "property" in 1828 both concretely (as in "[a]n estate, whether in lands, goods or money") and more abstractly (as "[t]he exclusive right of possessing, enjoying and disposing of a thing"). Put differently, the dictionary definition of property in 1828 was broad enough to include both the tangible or physical thing and the legal interests pertaining to it.

Coast Range Conifers, L.L.C., 339 Or at 143 (internal citation omitted).

"[P]hysically invasive actions, overflights, and regulations can rise to the level of a taking. Those decisions do not depart from the principle that underlies Article I, section 18; rather, they faithfully apply that principle to modern circumstances as they arise." Coast Range Conifers, L.L.C., 339 Or at 146.

§ 15.5-1 Property Right

To maintain an inverse condemnation action, the person alleging a taking must show that the property or property interest alleged to have been taken belonged to that person in the first place. Kinross Copper Corp. v. State, 160 Or App 513, 519, 981 P2d 833, adh'd to on recons, 163 Or App 357, 988 P2d 400 (1999), rev den, 330 Or 71, cert den, 531 US 960 (2000). Government action cannot give rise to takings liability "if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." Lucas v. South Carolina Coastal Council, 505 US 1003, 1027, 112 S Ct 2886, 120 L Ed 2d 798 (1992). Thus, under Article I, section 18, of the Oregon Constitution, "even if government action might otherwise constitute a taking of property, it will not if it is shown that what the government prohibits does not amount to a private property right in the first place." Kinross Copper Corp., 160 Or App at 519.

In Kinross, the landowner claimed that his property was taken because the denial of a water-discharge permit deprived his mining claim of all economic value. The court explained that the critical inquiry, therefore, was whether the plaintiff had the right to discharge wastewater in the first place...