State Highway Commission v. StumboState Highway Commission v. Stumbo
This is an appeal by the defendant landowners from a judgment of condemnation obtained against their property in the circuit court for Douglas County by the State Highway Commission, acting in the exercise of its powers of eminent domain. Constitution of Oregon, Art I, § 18;
The land in question is a narrow strip 16% feet wide and 200 feet long, located in Douglas County about ten miles north of Wolf Creek. The Stumbos, who own a farm in the neighborhood, used this strip as part of a roadway connection with old Pacific Highway 99. In 1946 the state relocated Highway 99 so as to pass directly over the Stumbo strip. On or about October 1,1946, the state took physical possession of the land and built the relocated highway over it. No effort was made to purchase or condemn the property, and it does not appear that either the Highway Commission or the Stumbos were aware of the true state of the title. Within the ten year period necessary to perfect adverse possession the Stumbos reasserted their right to the land, and in 1956 notified the Highway Commission of their claim. The commission then attempted to negotiate a purchase, but this effort failed. Thereafter, with full 1m owl - edge that the highway was laid over their property, the Stumbos conceived the idea of “subdividing” the strip into square parcels two inches long and two inches wide, and in fact sold some 290 of these minute lots by quitclaim deed.
November 28, 1956, the state filed the present action for condemnation of the property. By virtue of the sale of lots in their subdivision, the Stumbos claimed a market value for the property of $250,274 and suggested a reasonable attorney’s fee of $25,000. Their estimate of value was based on the theory that compensation was properly to be assessed at the date
The Stumbos do not contend that the award of compensation should have included the value of the improvements placed on their land by the state. The common law maxim, “quicquid plantatur solo, solo cedit,” (whatever is affixed to the soil belongs to the soil) has rarely been applied to make a trespassing corporation, invested with the power of eminent domain, pay the value of its own improvements.
Oregon Ry & Nav Co. v. Mosier,
We suppose that the 1956 value of the Stumbo strip, with the highway erased from the landscape, would not differ widely from the 1946 value. Probably the defendants’ principal motive in seeking a reversal of this judgment, as evidenced by their first assignment of error, is a desire to get evidence of their subdivision sales before the jury. That evidence, however, was incompetent to establish market value regardless of the date selected for valuation. It is true that the Stumbos retained a fee title to the land in 1956, and that as a general rule market value in
The question before us, therefore, is whether this strip of rural land is to be valued at the time of the trespass in 1946 or at the time of the legal condemna
Appellants argue that the statutory measures for obtaining property by eminent domain contemplate that the state must institute judicial proceedings before going into possession, and that that demand is conclusive there can be no “taking” before the complaint is filed. Hence, they contend that compensation must be determined at the time of beginning the action. We agree that the procedures set out in
The problem before us has been faced by courts of other jurisdictions from time to time. A canvass of authorities reveals that in some cases the date of trespass and in others the date of condemnation have been selected as the correct time at which to assess damages. Many of the decided cases involve not the state or a political subdivision but privately owned corporations invested with the power to condemn for public purposes — usually railroads. New tribunals, if any, appear to have made a conscious distinction. Whether a discrimination in rule, depending upon whether the condemnor is a public or private body, has any rational basis to commend it we need not decide here.
Where the trespassing condemnor is the state itself or other public body, authority is perhaps equally
Several other cases have taken the position that damages must be assessed at the time of condemnation, rather than at the time of the tortious entry.
Koerber v. City of New Orleans,
228 La 903, 84 So2d 454 (1955);
Cheskov v. Port of Seattle,
On the other hand, there are several decisions which hold that even if the trespassor is a private corporation damages must be assessed at the time of the original entry.
Jones v. New Orleans and Selma Railroad Company and Immigration Association,
70 Ala 227 (1881);
Cowan v. Southern Ry Co.,
118 Ala 554, 23 So 754 (1898);
Memphis & Little Rock Railroad Company v. Organ,
Occasionally the evidence in a case indicates that the condemnor has entered upon the land with the knowledge or actual consent of the landowner. That has sometimes been used as a reason for fixing com
These disagreements well illustrate that neither date for fixing damages has any compelling logic to commend it. In our judgment a better case can be made for assessing compensation at the date of entry rather than at the time of filing the condemnation petition. The strongest argument in favor of the latter date is a theoretical one: the fact that a landowner retains his fee interest in the property until
Forcing the state to pay the value of the land at the time of trial rather than at the time of the prior entry has no inherent deterrent effect. If land prices were subject to a law of increase only, one might reasonably contend that the state ought to be penalized for its negligence by obliging it to pay the higher value at the time of condemnation proceedings. But land values may fall as well as rise, with the result that in some cases it is the landowner rather than the trespassor who suffers the penalty. It is not always the condemnor who insists that value be fixed at the date of entry. See
City of Los Angeles v. Tower,
90 Cal App2d 869,
If, in a case such as this, “just compensation” were thought to require that the trespassor suffer some penalty and that the landowner be protected from possible loss through decrease in land values, the result could be accomplished by permitting the landowner to elect whether he will take the value at the time of the trespass or at the time of trial. This was the rule adopted by an early Mississippi decision,
Williams v. New Orleans, Mobile and Texas Railroad Company,
60 Miss 689 (1882), but it has not found favor elsewhere, unless by implication in a Florida case,
Casa Loma Springs Development Co. v. Brevard Co.,
93 Fla 601, 112 So 60 (1927). In our view, there
If damages are assessed at the time of the trespass, they are ascertained at a fixed rather than a shifting date. There will be no motive on either side to drag out negotiations in the hope of a favorable moment to demand condemnation; and settlement of claims rather than litigation will be encouraged. Moreover, problems of valuation are greatly simplified. This is not a case where the state has condemned lands for a public use, and at some later time condemns contiguous lands for a second public use. In that situation damages are the market value of the lands taken, as increased or diminished by the use already in existence. 1 Orgel, Valuation Under Eminent Domain (2d ed) § 104, p 443 et seq. Here, the land to be condemned was from the beginning an integral part of the proposed highway relocation, and we do not believe that the increase or decrease in area property values traceable to the highway itself could properly be taken into account in assessing compensation. Pa rks v. The City of Boston, 32 Mass 198 (1834); 1 Orgel, Valuation Under Eminent Domain (2d ed) Ch VIII, p 424 et seq. This being so, it would be a difficult task to appraise the property for condemnation purposes after the highway has been in existence for many years.
We note that fixing compensation at the date of the original entry denies the condemnee an opportunity to have the jury award a reasonable rental value of the premises for the period of unlawful occupation. As
The views we have set forth above follow the reasoning of those courts which adopt the rule that damages are to be assessed at the date of the trespass. Similar views are colorfully set out in the early opinions of Chief Justice Shaw and Chief Justice Brickell in Parks v. The City of Boston, supra, 32 Mass (15 Pick) 198 (1834) and Jones v. New Orleans and Selma Railroad Company and Immigration Association, 70 Ala 227 (1881). In the latter case the railroad was a trespassor and the landowner brought an action to have the property condemned, demanding that damages be ascertained as of the date of trial, and seeking to have the railroad’s improvements included in the assessment. In rejecting these contentions, the court noted:
“* * * Though the appellee was a trespassor, by reason of the neglect to pursue the proper remedy for acquiring the lands — acquiring them without the consent of the owner — there is in the right continuing in him to pursue the remedy, rendering the possession rightful, and by which title may be acquired, a plain distinction between the appellee and a common trespassor. * * *”
“* * * Just compensation for the land at the time of its taking, paid before or concurrently with its appropriation, was the right of the appellant. If there was an entry upon, and appropriation of the lands, without the consent of the owner, and without having the compensation ascertained, and making payment of it, there were remedies to which he could have resorted, protecting himself, regaining his possession, and compelling the ascertainment and payment of the compensation. If he is negligent —if he stands by in silence, suffering the wrongful entry, or continuance of possession under it, the construction of costly improvements, not necessary to the enjoyment of the freehold, inconvenient to his use and occupation, valuable to him only because he may dissever them, converting them again into personal property, and valuable only to the party making them for the uses to which they are dedicated — there is but little of equity in a claim that the measure of his compensation shall be increased by the value of improvements, or that the time at which such compensation is to be estimated shall be varied. * * *”
In Parks v. The City of Boston, supra, the city took the plaintiff’s land when it broadened a street, and the plaintiff later brought an action for damages, contending that they should be fixed at the time of the trial. In holding that the date of entry controlled award of compensation, the court observed that:
"* * * if a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand whilst they apply the axe with the other; and this rule is departed from only because some time is necessary, by the forms of law, to conduct the inquiry * * *."
“* * * certain and practical, and tends to prevent litigation, being a rule which parties may apply for themselves, and which, in most cases, will be the nearest approximation to doing particular justice. * * *”
In this case the State of Oregon is itself the condemnor. We, therefore, need not decide — other than as the logic of this opinion compels a decision — whether the rule of damages applied here would also apply where the trespassor is a private corporation invested with the power of eminent domain. And since the record is barren of any evidence that the state acted with a motive to oppress, or otherwise in bad faith, we express no opinion whether a different rule of damages should apply if such allegations were pleaded and proved.
The circuit court correctly ruled that compensation for the property condemned was to be ascertained at the date of the actual entry by the state — October 1, 1946 — with legal interest from that date until payment of the award.
The judgment is, therefore, affirmed.