Chapter § 15.6

• Jurisdiction: Oregon

§ 15.6 PHYSICAL TAKINGS

The classic taking is a physical taking. It occurs under Article I, section 18, of the Oregon Constitution when government action dispossesses a property owner of the owner's property or substantially interferes with the owner's use and enjoyment of the property. See Coast Range Conifers, L.L.C., 339 Or at 145 ("a 'classic' taking occurs when the government physically occupies or appropriates property"); Hawkins, 315 Or at 68.

§ 15.6-1 Government Action That Amounts to a Physical Taking

A physical taking occurs when government dispossesses a person of the person's property. See Moeller v. Multnomah County, 218 Or 413, 430-31, 345 P2d 813 (1959) (discussing "actual physical taking"). But actual dispossession or complete destruction of property is not required for a physical taking. Morrison v. Clackamas County, 141 Or 564, 569, 18 P2d 814 (1933) ("It is not necessary that the owner of property be actually dispossessed or that the property be completely destroyed in order to constitute a taking within the meaning of the constitutional provisions."). Rather, a taking occurs when there is "destruction, restriction or interruption of the necessary use and enjoyment of [the private] property" for public use. Moeller, 218 Or at 431.

§ 15.6-2 Physical Invasion or Occupation

A physical invasion or occupation of property by the government for public purposes is a physical taking under Article I, section 18, of the Oregon Constitution. See GTE Northwest, Inc., 321 Or at 469 (analyzing the issue under the federal constitution after the court assumed that the analysis under the Oregon Constitution would be the same). For example, physical placement of enhanced service-provider facilities on premises owned by a telephone carrier was a taking because it was a physical occupation. GTE Northwest, Inc., 321 Or at 472.

The duration of a physical invasion or occupation is not relevant to determining whether a taking has occurred. GTE Northwest, Inc., 321 Or at 473.

When an inverse condemnation claim is based on the physical occupation of the property, an owner of the property does not need to take steps to develop its property in order for the owner's claim to be ripe. Courter v. City of Portland, 286 Or App 39, 47-48, 398 P3d 936 (2017). Because the pipes were installed in the ground by the City of Portland, the facts were current and nonhypothetical, and no future events needed to occur before the owner could bring its inverse condemnation claim. Cou...