Property not Taken by Sewage
In Dunn v. City of Milwaukie, __Or __ (2014), SC S059316, the Supreme Court addressed the issue of intent in a “taking” by a governmental body for purposes of inverse condemnation. The Court reversed the Court of Appeals, holding that the evidence was not sufficient to prove such intent.
Defendant City used a hydrocleaning method to maintain sewer lines. Rarely, this method caused a backup of sewage into a home. For reasons not explained at trial, sewage backed up into plaintiff’s house. Several months later, plaintiff noticed damage and odors in her house and, 10 months after the incident, filed a claim with defendant. An action for negligence and inverse condemnation was filed 10 months later. The trial court dismissed the negligence claim, finding that plaintiff did not provide a timely tort claim notice. Defendant moved for a directed verdict on the inverse condemnation claim at the close of plaintiff’s case. This was denied and the jury found in favor of plaintiff. The Court of Appeals affirmed.
The primary issue before the Supreme Court was whether the alleged “taking” by defendant City was intentional. As provided by Article I, section 18 of the Oregon Constitution, “private property shall not be taken for public use … without just compensation.” Under Oregon case law, an intentional physical occupation or invasion of private property by the government amounts to a taking if there is “substantial interference with the property owner’s protected interests.” The Court noted that the power of eminent domain is “affirmative in nature” and can only be exercised intentionally, not negligently. In condemnation cases, intent is clear since the government initiates condemnation proceedings. However, the government can also take property by inverse condemnation, through actions that take property interests without first initiating condemnation proceedings. In those cases, intent must also be shown.
The intent element can be satisfied by the “natural and ordinary consequences test.” Under this test, an intent to take may be inferred “when the consequences of governmental action are necessary, inevitable, or substantially certain to result.” The Court noted that the Court of Appeals had misstated the test as requiring the result to be “a” natural and ordinary consequence, rather than “the” natural and ordinary consequence. This changed the test to one that inferred intent when the government’s act is simply a “but for” cause of the invasion or damage. Rather, the Court stated, the test requires a consequence that “is the natural one that will ordinarily flow, is the necessary or inevitable result of undertaking a particular act, unless some other force or event comes into play to alter what will otherwise occur.”
Applying the test to the facts of this case, the Court held that plaintiff did not prove the intent element. The evidence at trial was that sewage backups were rare, and not a certain or inevitable result of defendant’s hydrocleaning. Because the Court of Appeals had not considered plaintiff’s cross-appeal on the negligence claim, the case was reversed and remanded for consideration of that claim.