Chapter § 62.2 DEFINING EMINENT DOMAIN AND PUBLIC USE

• Jurisdiction: Oregon

§ 62.2 DEFINING EMINENT DOMAIN AND PUBLIC USE

§ 62.2-1 Eminent Domain Defined

Eminent domain is the inherent power of the sovereign to acquire property for public use. MacVeagh v. Multnomah Cnty., 126 Or 417, 431, 270 P 502 (1928); State By & Through Dep't of Transp. v. Lundberg, 312 Or 568, 571 n 1, 825 P2d 641, cert den, 506 US 975 (1992); City of Bend v. Juniper Util. Co., 242 Or App 9, 18, 252 P3d 341 (2011). Condemnation is the act of setting aside or actually taking property under the power of eminent domain. Lundberg, 312 Or at 571 n 1.

The power of eminent domain embraces all cases in which, by the authority of the government and for the general welfare of its citizens, the property of private citizens is taken and devoted to a use benefiting the public. State ex rel. Olcott v. Hawk, 105 Or 319, 328, 208 P 709 (1922). Once the legislature gives the authority to an agency to exercise the power of eminent domain, the matter is no longer purely legislative. The executive authorities determine when the power may be invoked and to what extent, and the judiciary must decide the constitutionality of the statute and the fixing of just compensation. Hawk, 105 Or at 326-27. With respect to the application of the power of eminent domain to property already devoted to a public use, see § 62.2-6.

§ 62.2-2 Limitations on the Eminent-Domain Power

The Oregon Constitution and the United States Constitution both limit the power of eminent domain by ensuring that private property may not be taken without payment of just compensation. US Const, Amend V; Or Const, Art I, § 18.

Furthermore, ORS 35.015(1) prohibits a public body from condemning private real property used as residences, business establishments, and farm and forest operations for the purpose of conveying all or a portion of the real property to a private third party. This prohibition does not limit a public body's ability to condemn real property constituting a danger to the health or safety of the community when the property is contaminated, contains dilapidated structures, has improper or insufficient water or sanitary facilities, or any combination of such factors. ORS 35.015(2)(a). The exceptions also include a public body's ability to sell timber, crops, topsoil, gravel or fixtures from real property the public body is otherwise condemning. ORS 35.015(2)(b). Finally, real property condemned for transportation facilities, transportation systems, utility facilities, or utility transmission systems is not subject to the prohibition against condemning for private third-party conveyances. ORS 35.015(2)(c).

§ 62.2-3 Authority to Exercise the Power of Eminent Domain

"The right of eminent domain is a right of sovereignty, and can be exercised only by legislative authority, and for a public use or benefit." Bridal Veil Lumbering Co. v. Johnson, 30 Or 205, 208, 46 P 790 (1896); GTE Nw., Inc. v. Pub. Util. Comm'n of Oregon, 321 Or 458, 466, 900 P2d 495 (1995), cert den, 517 US 1155 (1996). "The legislature may delegate its power of eminent domain to an administrative agency, but it must do so expressly." GTE Nw., Inc., 321 Or at 466. "[C]ondemnation statutes are in derogation of vested rights and must be strictly construed." Port of Umatilla v. Richmond, 212 Or 596, 608, 321 P2d 338 (1958); City of Portland v. Kamm, 132 Or 317, 320, 285 P 236 (1930).

A public body's decision to not use public treasury funds in acquiring right-of-way for a public project does not circumvent the requirement that eminent-domain powers be expressly granted. In GTE Nw. Inc., 321 Or at 466-68, the Public Utility Commission (PUC) argued that "when a government agency acts in eminent domain and takes private property for public use, but when compensation for that taking does not come directly from the public treasury, the agency needs no specific grant of authority." The Oregon Supreme Court rejected that argument, holding that Oregon case law has established a bright-line rule "that an agency may not act in eminent domain without an express grant of power from the legislature." GTE Nw. Inc., 321 Or at 467.

Public bodies that have been granted authority to exercise the power of eminent domain through vesting by statute and home-rule charter include various state agencies and departments, cities, counties, municipal corporations (including port authorities, irrigation districts, railroads, electric companies, gas companies, school districts, community college districts, transit districts, metropolitan service districts, people's utility districts, pipeline companies, port authorities, sanitary districts and authorities, water control districts, drainage districts and authorities, water control companies, service districts, and utility cooperatives), and other public bodies. Certain private corporations have also been granted the power to condemn property by eminent domain. See, e.g., ORS chapter 772 (including railway companies, and companies related to sewer, irrigation, and water).

The Oregon Legislature has not expressly granted the power of eminent domain to all governmental authorities or districts. For example, vector control districts, cemetery maintenance districts, and some other special districts are not specifically vested with the authority to condemn property. See, e.g., ORS 452.110 (board powers for...