Gruner v. Lane County

773 P.2d 815 (1989)

96 Or.App. 694

Billy GRUNER, Crystal Gruner, d/b/a Pleasant Hill Ranch, and Robert Jeremiah, d/b/a B.J. Equipment Company, Appellants, v. LANE COUNTY, Respondent.

16-87-10179; CA A49120.

Court of Appeals of Oregon.

Argued and Submitted February 10, 1989.

Decided May 24, 1989.

*816 Clayton C. Patrick, Salem, argued the cause for appellants. With him on the briefs was William D. Brandt, Salem.

David B. Williams, Eugene, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Plaintiffs appeal the dismissal with prejudice of their claim for relief for inverse condemnation. Or. Const., Art. I, § 18.[1] The sole issue is whether their first amended complaint alleges facts sufficient to state a claim. We affirm.

Plaintiffs Gruner, as lessor, and plaintiff Jeremiah, as lessee, of a rock quarry, brought this action against the county to recover damages for an alleged taking of plaintiffs' property by adoption of a county ordinance reducing the load limit from 40 tons to 17 tons on two county roads that provide access to the quarry. Plaintiffs' complaint alleges:

"As a direct and proximate result of the adoption of [the ordinance], Plaintiff Jeremiah has been denied the use and benefit of the property which is the subject of the lease, specifically the rock quarry for the reason that he is unable to remove the rock from the quarry and is unable to resell the rock as intended and contemplated by Plaintiff Jeremiah and Plaintiffs Gruner. "As a direct and proximate result thereof, Plaintiff Jeremiah has suffered damage by the taking of his property in the form of lost sales from the quarry and inability to fill orders and commitments to contracts and has further suffered continued expenses of operating the quarry and continued expenses of maintaining the lease in the amount of $200,000.00. These damages continue every day."

In reviewing the sufficiency of the complaint, we assume the truth of plaintiffs' allegations and of any facts that might conceivably be adduced as proof of those allegations. Brennen v. City of Eugene, 285 Or. 401, 405, 591 P.2d 719 (1979). Plaintiffs are entitled to the benefits of all intendments and inferences that can be reasonably drawn from the facts pleaded. Lincoln Loan v. State Highway Commission, 274 Or. 49, 52, 545 P.2d 105 (1976).

The parties cite different standards for what constitutes a compensable taking by inverse condemnation. County contends that the appropriate criteria for whether a compensable taking has occurred in this case is found in cases of inverse condemnation in the land use planning or zoning context. In those cases, the land owner is not entitled to compensation for inverse condemnation unless: 1) the owner is precluded from all economically feasible private uses pending eventual taking for public use; or 2) the designation results in *817 such governmental intrusion as to inflict virtually irreversible damage. Suess Builders Company v. City of Beaverton, 294 Or. 254, 258, 656 P.2d 306 (1982); Fifth Ave. Corp. v. Washington County, 282 Or. 591, 614, 581 P.2d 50 (1978).

Plaintiffs rely on the standard used when a taking occurs as a result of trespass or nuisance "any destruction, restriction, or interruption of the common and necessary use and enjoyment of the property of a person for a public purpose" constitutes a compensable taking within the meaning of Article I, section 18. Lincoln Loan v. State Highway Commission, supra, 274 Or. at 52-53, 545 P.2d 105. They contend, citing our opinion in Douglas County v. Briggs, 34 Or. App. 409, 578 P.2d 1261 (1978), aff'd on other grounds, 286 Or. 151, 593 P.2d 1115 (1979), that, by reducing the load limit on the two roads providing access to the rock quarry, the county has deprived them of their common law right of access and, consequently, the right to use their property.

Plaintiffs are correct that an owner of land abutting a street has a common law right of access to his property from the road. Oregon Investment Co. v. Schrunk, 242 Or. 63, 408 P.2d 89 (1965); Boese v. City of Salem, 40 Or. App. 381, 595 P.2d 822, rev. den., 287 Or. 507 (1979). However, that right is qualified by the state's inherent power. To protect the public safety, convenience and welfare, a governing body may qualify or restrict an abutting landowner's right of ingress and egress. Oregon Investment Co. v. Schrunk, supra, 242 Or. at 67, 408 P.2d 89; Boese v. City of Salem, supra, 40 Or. App. at 383, 595 P.2d 822; Douglas County v. Briggs, supra, 34 Or. App. at 409, 578 P.2d 1261. "Such restrictions do not constitute a taking so long as an adequate means of access remains available to the abutting property owner." 34 Or. App. at 414, 578 P.2d 1261.[2] Inconvenience, reduction in profits or depreciation in the value of property that occurs as a result of a legitimate exercise of the state's police power is damnum absque injuria and not a compensable taking. Oregon Investment Co. v. Schrunk, supra; City of Salem v. Merritt Truax, 70 Or. App. 138, 688 P.2d 120 (1984); Boese v. City of Salem, supra.

County argues that, because plaintiffs are not precluded from hauling loads of 17 tons or less, they have not been denied all access and, therefore, their claim is merely for consequential damages for reduction in economic expectations and is not a claim for a compensable taking. We agree and hold that the complaint is not sufficient. Plaintiffs did not plead facts that, if proved, would show that by reducing the load limit to 17 tons on the two county roads, the county has, in effect, denied them adequate and reasonable access to their property for the principal purpose for which it is used. The fact that *818 plaintiffs' business expectations may have been lowered because they are now required to haul the rock from the quarry in smaller loads does not rise to the constitutional magnitude requiring compensation. Douglas County v. Briggs, supra, 286 Or. at 157, 593 P.2d 1115.

The trial court did not err in sustaining county's motion to dismiss.

Affirmed.

NOTES

[1] Although plaintiffs cite no constitutional provisions in their brief or complaint, we rest our decision on Article I, section 18, because they cite only Oregon case law that addresses a "taking" under that provision.

[2] In Briggs, the defendants had access to and from their property on two county roads. The question was whether Douglas County's conversion of the road in front of their property into a throughway, with a resulting loss of access, constituted a compensable taking. We held:

"When restrictions on access are imposed, whether or not adequate access remains available is a question of fact which must be determined in light of the highest and best use of the affected property. 2 Nichols, Eminent Domain, § 5.72[1] at 5-165 (1976)." 34 Or. App. at 414, 578 P.2d 1261.

We concluded that the county's action resulted in a compensable taking, because the highest and best use of the affected property was for commercial purposes and, although existing access from the unaffected road was adequate for residential and farming purposes, the only adequate commercial access to the property was destroyed.

The Supreme Court affirmed our decision but limited its ruling to statutory grounds, expressly declining to decide the constitutional issue. Douglas County v. Briggs, supra, 286 Or. at 156, 593 P.2d 1115.

"[W]e take no position one way or the other on whether Article I, Section 18, of the Oregon Constitution mandates payment for loss of rights of access in a situation like the present. Despite defendants' common law right of access, we believe the matter to be one of considerable doubt in situations in which the access is terminated for purposes which have to do with the use of the county road as a public road." (Footnote omitted.)

The Court went on to acknowledge, however, that

"the question of whether loss of adequate and reasonable access would be compensable is one of constitutional magnitude." 286 Or. at 157, 593 P.2d 1115.