Chapter §15.14 TAKINGS VERSUS OTHER LEGAL THEORIES

• 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.

§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 or when 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 v. City of Lake Oswego, 335 Or 19, 29-30, 56 P3d 396 (2002); see also Patterson v. Horsefly Irr. Dist., 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 [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 Cnty., 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 v. Columbia Cnty., 223 Or App 223, 236-37, 195 P3d 414 (2008) (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").

Second, to be a taking, the invasion must be substantial. Hawkins v. City of La Grande, 315 Or 57, 68-69, 843 P2d 400 (1992) (test for whether damage to property constitutes a taking is whether there has been a "substantial interference" with use and enjoyment of property).

Drawing a precise line between a taking and mere tortious conduct has proven difficult in practice. Compare Moeller v. Multnomah Cnty., 218 Or 413, 345 P2d 813 (1959) (blasting operations in a quarry that caused cracks in the plaintiffs' nearby home were not a taking because of insufficient evidence of "'destruction, restriction, or interruption'" in...