465 P.2d 697 | Or. | 1970
This is an action for inverse condemnation arising out of the construction of a limited access thronghway between Klamath Falls and Malin, Oregon. Plaintiff, whose property abuts the new thronghway, contends that it has been deprived of its right of access to a public road. The trial court found for defendant and plaintiff appeals. The relevant facts are as follows.
In 1944 the Oregon State Highway Commission entered in its official minutes a “Survey Resolution” to construct a public highway between Klamath Falls and Malin and to acquire rights of way and access rights along the proposed route. Klamath County was the owner of a large portion of land along the proposed route, including a section adjoining Alameda Street (later Alameda Avenue), then a city street. The highway plan contemplated that Alameda Street would be widened to the north and incorporated as part of the route.
Pursuant to this plan, Klamath County entered into a land sale contract to sell to the State of Oregon, in fee simple, a sixty-foot wide strip along the north edge of Alameda Street. The agreement stated that the land was to be used for a highway and that the
In 1953 the county sold the land adjoining the sixty-foot strip to private parties.. No mention was made in these deeds of any restriction of abutter’s access rights, although the deeds did refer to the conveyance by the county of the sixty-foot strip to the state for highway purposes. Through mesne conveyances plaintiff acquired a portion of this land in June, 1961. Plaintiff and its predecessors in title duly recorded their deeds.
In September, 1961 the ' Oregon State Highway Commission entered in its official minutes a resolution which again declared its intent to construct a Klamath Falls-Malin highway. This resolution declared that the highway would be a limited access throughway within the meaning of the Throughway Law, Oregon Laws 1947 -(now. ch 226). The route along Alameda Street in the vicinity of plaintiff’s property was retained in the same form as set forth in the 1944 resolution. Construction was commenced in 1965 and completed in 1966.
Prior to the opening of the newly constructed highway Alameda Street had retained its character as a city street and had not been used as a part of the state highway system.
Plaintiff contends that the entire right of way obtained by the state in 1944, including both Alameda Street and the adjoining sixty-foot strip, became a state highway at that time. Since the recorded deeds in plaintiff’s chain of title gave no notice of access
Defendant answers that a highway, insofar as it would give rise to access rights to abutting owners, does not come into existence until a roadway is actually constructed and dedicated and that since there was no actual roadway on the sixty-foot strip until the throughway was constructed, plaintiff had no rights to lose. Defendant further contends that even if the sale of the sixty-foot strip could create a “highway” and corresponding access rights in the adjoining land, such rights were waived by Klamath County, the then owner of the adjoining land.
The trial court found that even if it is assumed that access rights arose at the time the resolution to create the highway was entered in the commission’s minutes, plaintiff had constructive notice of the 1944 agreement between Klamath County and the State Highway Commission and was therefore put on notice that the access rights in the property it purchased had been waived.
When plaintiff purchased the land from Klamath County the deed records showed only that the county had previously conveyed an adjoining strip to the State
Further inquiry would have disclosed the agreement between the county and the state restricting the abutting owners’ right of access. The trial court correctly held that plaintiff was' put on notice that the access rights in the land purchased by it had been waived.
The judgment is affirmed.
“* . * * [T]he statute authorizes the acquisition by condemnation of a iee which is essentially unlike the taking for a conventional highway, and is essentially like the fee which a private individual would acquire by purchase, which of course, would imply no right of access over the vendees’ land by the vendor” State Highway Com. v. Burk et al, 200 Or 211, 229, 265 P2d 783 (1954).
State Highway Com. v. Burk et al, supra, holding that when land is condemned for a new non-access highway, owners of property adjoining the condemned land are not entitled to compensation for loss of access rights since no such access rights ever came into existence. Cf. Schnider v. State, 38 Cal2d 439, 443, 241 P2d 1, 3 (1952) which adds: “[A] resolution creating a freeway gives adequate notice that no new rights of access will arise unless they are specifically granted.”'