Oregon Supreme Court on Physical Takings Claims

In the case of Dunn v. City of Milwaukie, the Oregon Supreme Court recently issued a valuable decision addressing the standards for when government can be held liable for a taking due to physical invasion of private property (at least under the Oregon Takings Clause, though the decision relies in part on federal precedent).

The case arose (hold your nose) when the city’s use of high-pressure “hydrocleaning” to wash the public sewer system caused sewage to back up and spill into the plaintiff’s house through toilets and other bathroom fixtures.   A jury found for the plaintiff and awarded compensation, and the award was affirmed by the Oregon Court of Appeals.  The Oregon Supreme Court has now reversed.

In a nutshell, the Court ruled that the plaintiff failed to present sufficient evidence of “intent” to invade plaintiff’s property to support the takings claim.  Generally speaking, the Court said, to establish a taking on a physical takings theory the plaintiff must demonstrate that the “government has intentionally authorized a physical occupation of private property that substantially has interfered with the owner’s rights of exclusive possession and use.”   The Court explained that “the intent element of a takings claim is fundamental in distinguishing between those actions that are the equivalent of an exercise of eminent domain and those that are actionable as ordinary torts. The power of eminent domain is affirmative in nature. It is a power exercised for a particular purpose—the public’s benefit— and intentionally. The idea that the sovereign’s power of eminent domain could be exercised through error, accident, or inadvertence, is at odds with the nature of the power itself. Inadvertent and unintended acts give rise to liability, if at all, as ordinary torts, not takings.”

In the absence of direct evidence of an intent to invade, the court continued, a plaintiff must show that the invasion was “the necessary, certain, predictable, or inevitable result” of some government action or policy.   Here, that standard was not met because this type of sewer back up was a rare event in the process of hydrocleaning, and no one predicted that this backup would occur or could explain after the fact why it occurred.  The court recognized that the evidence supported the conclusion that the hydrocelaning was the “but for” cause of the sewage eruption, but that was insufficient to demonstrate an intentional taking.

The decision contains a particularly helpful discussion of the interplay between tort claims and claims of intentional physical takings. The former depends on a showing of negligence, and the viability of a tort claim also depends on other issues such as immunity doctrine. A physical taking claim requires an intent to take.  Some government actions resulting in injury to private property interest will not fall into either category.  As the court out it, some government actions are “purely accidental or inadvertent, and not due either to negligence or intent.”