Chapter §15.6 PHYSICAL TAKINGS

• 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 his or her property or substantially interferes with an owner's use and enjoyment of his or her property. See Coast Range Conifers v. Board of Forestry, 339 Or 136, 145, 117 P3d 990 (2005) ("a 'classic' taking occurs when the government physically occupies or appropriates property"); Hawkins v. City of La Grande, 315 Or 57, 68, 843 P2d 400 (1992).

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

A physical taking occurs when government dispossesses a person of his or her property. SeeMoeller v. Multnomah Cnty., 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 Cnty., 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 Nw., Inc. v. Pub. Util. Comm'n of Oregon, 321 Or 458, 469, 900 P2d 495 (1995) (analyzing 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 Nw., Inc., 321 Or at 472. The duration of a physical invasion or occupation is not relevant to determining whether a taking has occurred. GTE Nw., Inc., 321 Or at 473.

§15.6-3 Property Damage

Although the Oregon Supreme Court has said "property is not 'taken' if it is simply damaged," Hawkins v. City of La Grande, 315 Or 57, 68, 843 P2d 400 (1992), that statement must be considered in context. A half century ago, in Moeller v. Multnomah Cnty., 218 Or 413, 426, 345 P2d 813 (1959), the Oregon Supreme Court pointed out that Article I, section 18, of the...