State Ex Rel. Department of Transportation v. Alderwoods (Oregon), Inc.
366 P.3d 316
Or.2015Background
- ODOT reconstructed a segment of Highway 99W, removing two direct driveways from Alderwoods’ property (which previously had four approaches: two to 99W and two to Warner Ave.) while leaving two Warner Ave. driveways intact.
- ODOT initiated condemnation for a temporary construction easement and any access rights; it also notified Alderwoods it would remove the unpermitted approaches to 99W (though the state later conceded the approaches predated 1949).
- The trial court granted the State’s motion in limine excluding evidence of damages for loss of the two 99W driveways and awarded $11,792 for the temporary easement; Alderwoods appealed.
- The Court of Appeals was evenly divided; concurring opinions reviewed the common‑law abutter access right and whether regulatory road changes for safety purposes can be a taking.
- The Oregon Supreme Court considered whether an abutting landowner’s common‑law easement of access is a compensable property interest under Article I, §18, and whether ORS 374.035 provides additional statutory protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether governmental elimination of two curb cuts onto an abutting highway constituted a taking under Article I, §18 | State: closure for highway safety is a legitimate regulation and not a compensable taking when reasonable access remains | Alderwoods: any interference with an abutter’s direct access is a taking; remaining indirect access only affects damages | No taking: where closure serves legitimate highway safety purposes and reasonable access via other abutting street (Warner Ave.) remains, no compensable taking occurred |
| Nature/scope of abutter’s access right (common law) | State: access is a qualified, undifferentiated easement subject to public road regulation | Alderwoods: access includes a right to direct access that cannot be extinguished without compensation | Court: abutter holds an easement appurtenant but it is limited; reasonable access—not the most direct—is protected |
| Whether reasonableness of remaining access is a question of fact for jury | Alderwoods: reasonableness depends on highest and best use and is fact question | State: where facts undisputed, court may decide reasonableness as matter of law | Court: may decide as matter of law when facts undisputed; here, reasonable access via Warner Ave. existed as a matter of law |
| Whether ORS 374.035 independently requires compensation beyond constitutional protection | Alderwoods: statute mandates compensation when access rights are taken in throughway projects | State: statute is procedural, providing condemnation mechanism but not broader rights than Article I, §18 | Court: ORS 374.035 is procedural and coextensive with constitutional protection; it does not create additional substantive compensation rights |
Key Cases Cited
- State Highway Comm. v. Burk, 200 Or 211 (1954) (discusses conversion to non‑access highway and easement availability)
- Oregon Investment Co. v. Schrunk, 242 Or 63 (1965) (abutter access right is subject to legitimate street regulation; denial of access for safety may not be a taking)
- Barrett v. Union Bridge Co., 117 Or 220 (1926) (abutter’s access right recognized but limited by public road uses)
- Brand v. Multnomah County, 38 Or 79 (1900) (lawful street grade changes that serve highway purposes are not takings)
- Sweet v. Irrigation Canal Co., 198 Or 166 (1953) (uses of street for other than legitimate highway purposes can be takings)
- Holland v. Grant County, 208 Or 50 (1956) (access need only be reasonable, not at all abutting points)
- Coast Range Conifers v. Board of Forestry, 339 Or 136 (2005) (court may decide as matter of law whether regulation effects a taking when facts undisputed)
- Hall v. Dept. of Transportation, 355 Or 503 (2014) (defines taking as exercise of eminent domain and reiterates constitutional protection for vested property rights)