Dunn v. City of Milwaukie ( 2014 )

No. 28 May 8, 2014 339
IN THE SUPREME COURT OF THE
STATE OF OREGON
Sharon DUNN,
Respondent on Review,
v.
CITY OF MILWAUKIE,
an Oregon municipality,
Petitioner on Review.
(CV07040247; CA A139386; SC S059316)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 10, 2011; resubmitted
January 7, 2013.
Michael A. Lehner, Lehner & Rodrigues PC, Portland,
argued the cause and filed the brief for petitioner on review.
Kenneth P. Dobson, Chenoweth Law Group, PC, Portland,
argued the cause and filed the brief for respondent on review
and filed the response to the League of Oregon Cities’ amicus
curie brief.
Terence L. Thatcher, Senior Deputy City Attorney,
Portland City Attorney’s Office, Portland, filed a brief on
behalf of amicus curiae League of Oregon Cities.
LINDER, J.
The decision of the Court of Appeals is reversed, and the
case is remanded to that court for further proceedings.
______________
*  On appeal from Clackamas County Circuit Court, Eve L. Miller, Judge. 241
Or App 95, 250 P3d 7 (2011).
340 Dunn v. City of Milwaukie
The city moved for directed verdict in this inverse condemnation case, argu-
ing that plaintiff’s evidence did not establish a compensable taking of property for
purposes of Article I, section 18, of the Oregon Constitution, because plaintiff had
failed to prove that the city intended to take her property. The trial court denied
the motion, and the jury found in favor of plaintiff. On appeal, the city argued
that, to prove that the city had acted intentionally, plaintiff must show that the
city took the actions that it did knowing that the sewage backup onto plaintiff’s
property was “substantially certain” to occur. The Court of Appeals affirmed.
Held: A factfinder is entitled to infer the requisite intent to take property if the
invasion to the property owner’s interests was “the natural and ordinary con-
sequence” of the government’s intentional acts. To meet that legal standard, a
plaintiff must show that the government undertook its actions intentionally and
that the necessary, certain, or inevitable result of those actions, in the ordinary
course of events, was the invasion of the plaintiff’s property that is the basis for
the plaintiff’s inverse condemnation claim. Because there was no evidence that
the sewage backup into plaintiff’s house was the necessary, certain, or inevita-
ble result of the actions in cleaning the sewer lines adjacent to plaintiff’s house
with highly pressurized water, the evidence was insufficient to support plaintiff’s
inverse condemnation claim.
The decision of the Court of Appeals is reversed, and the case is remanded to
that court for further proceedings.
Cite as 355 Or 339 (2014) 341
LINDER, J.
The City of Milwaukie (the city) used highly pres-
surized water to clean the sewer lines adjacent to plaintiff’s
house, causing sewage to back up through toilets and bath-
room fixtures. Plaintiff brought this action against the city
seeking compensation for the damage to her home on two
theories—negligence and inverse condemnation. The trial
court dismissed the negligence claim before trial as barred
by the statute of limitations. See ORS 30.275 (requiring
notice of tort claim against public body to be given within
180 days of injury). The inverse condemnation claim went
to trial before a jury. At the close of plaintiff’s case, the city
moved for a directed verdict, arguing that the evidence
did not establish a compensable taking of property under
Article I, section 18, of the Oregon Constitution.1 The trial
court denied the city’s motion, and the jury found for plain-
tiff, awarding $58,333 in damages. On appeal, the Court of
Appeals affirmed. Dunn v. City of Milwaukie, 241 Or App
95, 102, 250 P3d 7 (2011). We allowed the city’s petition for
review to consider whether a backup of sewage water into a
house and the resulting damage, as happened here in the
course of maintenance and cleaning of the city’s sewage sys-
tem, amounts to a compensable taking of property. As we
will explain, on the facts before us, we conclude that the
city’s actions did not give rise to a compensable taking. We
therefore reverse the decision of the Court of Appeals.
BACKGROUND
On review, we state the facts in the light most
favorable to plaintiff.2 As part of its maintenance of the
city sewer system, the city regularly uses highly pressured
water—a process called “hydrocleaning”—to clean the city’s
sewer lines. The hydrocleaning process permits the city,
after the cleaning, to use a video camera to inspect the
lines for breaks and repairs needed as part of preventative
maintenance. Hydrocleaning can cause water in the sewer
1
Article I, section 18, provides, in part: “Private property shall not be taken
for public use * * * without just compensation[.]”
2
See Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984) (after
denial of motion for directed verdict, reviewing court considers evidence and all
inferences it supports in light most favorable to prevailing party).
342 Dunn v. City of Milwaukie
lines to backflow through the lateral lines that run from
the main sewer line into adjacent houses and then possibly
backup through the toilets or other fixtures in the house. If
a backup into a house occurs, the city designates the area
involved on a map as a “low-pressure” area. That designa-
tion lets workers know to use reduced water pressure for
future hydrocleaning in that area to prevent another water
invasion. Plaintiff’s house was not in an area marked for
low pressure cleaning as of August 2005, when this backup
occurred (although the area has since been so designated).
As a result, the two city employees cleaning the sewer in the
vicinity of plaintiff’s house used the higher pressure that is
routine for the hydrocleaning process.
Plaintiff first became aware of a backup when she
heard a “loud roar,” felt her house shake, and then saw
“brown and gray gunky sewer water that stunk” come out
of her toilets and bathroom fixtures. Soon afterwards, water
was dripping from her bathroom ceiling and was three to four
inches deep on the bathroom floor, flowing down the hallway
and into her living room. Plaintiff went out and approached
a woman standing near a city truck outside her house. The
worker seemed “shocked” that sewer water was coming into
plaintiff’s house and offered her towels. Plaintiff cleaned the
house herself with towels and a wet/dry vacuum. As far as
the record shows, plaintiff did not vacate the house or other-
wise have to interrupt her occupation of it.
About six or seven months after the sewage water
backup, plaintiff began to notice that her wood floor felt
clammy (and eventually began to buckle), her wallpaper
began to peel, and at times she smelled a sewage-like scent.
Over the next two months, plaintiff hired several people to
inspect her home for water and microbial damage and to pro-
vide repair estimates. About 10 months after the incident,
plaintiff filed a formal complaint with the city. More inspec-
tions and repair estimates followed, and, ultimately, about
20 months after the incident, plaintiff brought this action
against the city for negligence and inverse condemnation.
At trial, no witness could explain why the sewage
backed up into plaintiff’s house when it did. Plaintiff’s house
had been built in 1976, and plaintiff had lived in it since
Cite as 355 Or 339 (2014) 343
1984. There is no evidence that, before this incident, sew-
age had backed up into plaintiff’s house or into any other
house in the near vicinity as a result of the city’s sewer
maintenance activities. The two city workers who were
hydrocleaning the sewers near plaintiff’s house when the
backup occurred explained that they did everything “by the
book” and that their equipment was “operating properly”
that day. They did not know why the sewer water backed up
into plaintiff’s house when it did. They could say only that
backups into a house can occur for reasons relating to the
vents in that house’s plumbing and the design of the lat-
eral lines running from the main sewer line to the house.3 A
plumber who inspected plaintiff’s house at some point after
the backup found nothing out of the ordinary in the plumb-
ing system itself, however. According to him, backups some-
times occur if the hydrocleaning cannot clear a blockage in
the main line, which can cause sewage water in the main
line to backup into a lateral line running to a nearby house.
But he could not say why one area, and not another, might
be prone to such backups.
By all accounts, however, sewage backups into adja-
cent homes during city hydrocleaning are rare. One of the
two workers hydrocleaning near plaintiff’s house when the
backup occurred had worked for the city for about seven
years. The backup into plaintiff’s house was the only one
that he had personally experienced, although a few years
later he heard of one other. The plumber who inspected
plaintiff’s house was generally aware of other sewer backups
such as the one into plaintiff’s house, and he characterized
them as “uncommon.”
The sewage water that backed up into plaintiff’s
house caused damage to the wood floors, crawl space, and
furnace. The estimated cost to repair that damage was
3
City workers explained that, for example, if the plumbing vents in a house
are plugged, air that builds up as the lines are cleaned may have nowhere to
escape other than through the toilets or other fixtures of that house. The design
of the lateral lines running to a home from the main sewer also can be a factor.
If the lines are particularly short, air pushed through the line from the cleaning
process may not dissipate, which can cause a backup through a house’s toilet.
Similarly, a backup can result if the lateral line is lower than the main line,
which makes it easier for the water to backflow into the house.
344 Dunn v. City of Milwaukie
$57,905.83, plus another “couple thousand” to replace the
vapor barrier and insulation in the crawlspace, and $8,000
for ruined carpets.4
As earlier noted, at the close of plaintiff’s case, the
city moved for a directed verdict, arguing that plaintiff’s evi-
dence did not establish a compensable taking of property for
purposes of Article I, section 18, of the Oregon Constitution.
The city argued in particular that, to prove a compensa-
ble taking, plaintiff had to demonstrate that the city had
acted intentionally, which required evidence that the city
took the actions that it did knowing that the invasion of
plaintiff’s property was “substantially certain” to occur or
was otherwise a “normal consequence” of the city’s actions.
Plaintiff, in response, argued that she had to show only that
the backup into her house was the “natural and ordinary
consequence” of the city’s actions and that where, as here,
there was no evidence of any other causes, the evidence was
sufficient to go to the jury.5 The trial court denied the motion
for directed verdict. The jury found in favor of plaintiff and
awarded plaintiff $58,333 in compensation.
The city appealed, challenging, among other issues,
the denial of its motion for directed verdict. In support of
their respective positions, the parties effectively renewed
the arguments that they had advanced to the trial court.
Relying on this court’s decision in Vokoun v. City of Lake
Oswego, 335 Or 19, 56 P3d 396 (2002), the Court of Appeals
affirmed. It agreed with the city that intent was a necessary
4
The city vigorously disputed plaintiff’s evidence of what damage could
be traced to the sewage water backup in August 2005 and the value of certain
items (such as the carpets). The city also vigorously disputed whether, as plain-
tiff’s expert appraiser testified, the sewer water backup created a stigma that
decreased the market value of the property by $100,000. The damages awarded
by the jury tracked closely with the repair and replacement damages that plain-
tiff presented, except for the value that plaintiff placed on her carpets; the jury
did not award plaintiff damages in an amount comparable to plaintiff’s claimed
loss of market value. Consistently with our standard of review, therefore, we
describe the evidence in the light most favorable to plaintiff’s favorable jury ver-
dict, but that description, in this case, does not include market value loss.
5
The city also argued that the damage to plaintiff’s house was not a suffi-
ciently substantial interference with her property rights to constitute a “taking.”
The trial court concluded that the evidence presented a jury question on that
point, as did the Court of Appeals. Dunn, 241 Or App at 103. The city continues
to make that argument on review. Because our conclusion on the city’s intent
argument is dispositive, we do not reach that aspect of the city’s argument.
Cite as 355 Or 339 (2014) 345
element of plaintiff’s claim, but reasoned that the jury
reasonably could infer the city’s intent to cause the sewer
backup if the backup was “a natural and ordinary conse-
quence” of the city’s sewer cleaning:
“The question is not whether the harmful result occurs fre-
quently; it is whether the result is a natural and ordinary
consequence of the government’s action at the time and
place where that action occurred. * * * [A] consequence that
was the last link in a chain of events that began with the
governmental action and proceeded, without unnatural or
extraordinary intervening causes, to produce the damage.”
Dunn, 241 Or App at 102 (emphasis omitted). The court con-
cluded that the jury could infer the city’s intent from evi-
dence that the city had carried out the cleaning according
to normal procedures and that doing so in some areas of the
city can cause sewer backups in private houses. Id.
We allowed the city’s petition for review. Mindful
that the Court of Appeals was applying what it understood
to be the “natural and ordinary consequences” test reaf-
firmed by this court in Vokoun, the city, along with amicus
curiae League of Oregon Cities, argues for a modification
of—or at least, a clarification of—that test. Specifically,
the city asserts that intent should be inferable only from
evidence that an invasion of plaintiff’s property interests
was “substantially certain” to occur as a result of the gov-
ernment conduct. The city also argues that, regardless of
whether this court modifies the test from Vokoun, proof of
intent requires some evidence that the intended result was
expected. The city concludes that plaintiff offered insuffi-
cient evidence of its intent to survive a motion for directed
verdict because there was no testimony or other evidence
at trial that “the [c]ity expected water to enter plaintiff’s
home.”
Plaintiff disagrees that the “natural and ordinary
consequences” test requires modification or refinement.6 In
6
Plaintiff argues fleetingly that the city did not preserve its argument
because it did not urge the trial court or the Court of Appeals to modify or refine
the “natural and ordinary consequences” test that Vokoun reaffirmed. The city,
however, made the same arguments that it makes now about what Vokoun’s test,
correctly understood, requires of a plaintiff’s evidence. To preserve its position,
346 Dunn v. City of Milwaukie
plaintiff’s view, that test effectively serves what plaintiff
sees as its primary purpose: to distinguish between govern-
mental negligence and intentional takings. Plaintiff asserts
that she sufficiently proved the city’s intent by showing that
the flooding of her house was the direct result of the city’s
purposeful act of hydrocleaning. It does not matter, plaintiff
urges, that sewers regularly are hydrocleaned without caus-
ing water to back up into nearby homes. Plaintiff empha-
sizes that there was no evidence that the city acted negli-
gently (i.e., failed to exercise reasonable care). According to
plaintiff, “[i]n the absence of any unnatural or extraordi-
nary intervening events, such as negligence on the [c]ity’s
part[  the jury had ample evidence that the flood of sewer
],
water was the natural and ordinary consequence of blasting
high pressure water in this particular area.”
So framed, this case calls on this court to examine
what “intent” means in the context of a takings claim and,
concomitantly, the nature and quality of evidence that will
support an inference that the government acted with the
requisite intent. To resolve that issue, we begin with the
principles that guide our analysis of takings claims gener-
ally. We then turn to the “intent” element of plaintiff’s claim
and what was required of plaintiff’s proof to satisfy that
element.
GENERAL PRINCIPLES
A “taking” of property is a shorthand description for
an exercise of the government’s power of eminent domain,
which is the power of the sovereign to take property for
“public use” without the property owner’s consent. Coast
Range Conifers v. Board of Forestry, 339 Or 136, 142-43, 117
P3d 990 (2005) (discussing the term “taking”); 1 Nichols on
Eminent Domain § 1.11, 1-7 (Julius L. Sackman ed., 3d ed
2013) (describing power of eminent domain generally). The
power of eminent domain requires no grant of authority for
its exercise, but instead is an inherent attribute of sover-
eignty. Tomasek v. Oregon Highway Com’n, 196 Or 120, 142,
the city did not have to make a futile request that the trial court or the Court of
Appeals modify or refine the test from Vokoun to avoid its misapplication or mis-
interpretation, as the city urges happened in this case. That argument is more
appropriately directed to this court.
Cite as 355 Or 339 (2014) 347
248 P2d 703 (1952); 1 Nichols on Eminent Domain § 1.11 at
1-7. Thus, Article I, section 18, is not the source of the state’s
eminent domain power. Tomasek, 196 Or at 142-43. Instead,
by declaring that “[p]rivate property shall not be taken
for public use *  * without just compensation[,]” it states a
*
familiar limitation on the state’s power of eminent domain—
that, when the state takes property, it must pay for it. See id.
at 143 (Article I, section 18, is protection for property owner
rather than source of eminent domain authority).
Typically, government exercises its eminent domain
power by initiating a condemnation proceeding and, through
that proceeding, compensating a property owner before
appropriating property for a public purpose. See Cereghino
et al v. State Highway Com., 230 Or 439, 443-44, 370 P2d
694 (1962) (so stating). But the power of eminent domain
can be exercised de facto as well as de jure, which occurs
when the government takes property interests through
its actions without first initiating condemnation proceed-
ings. When that happens, the property owner can bring an
inverse condemnation action to obtain the just compensation
that Article I, section 18, guarantees. Id. at 444.
Consistently with the idea that the takings clause
is not the source of the state’s power to take property, but
instead requires compensation for property taken, Article I,
section 18, itself does little to inform the understanding of
when a government action constitutes a compensable tak-
ing. The most that can be said is that there must be an
“appropriation of private property” for a public purpose that
is characteristic of an exercise of eminent domain authority.
See generally Coast Range Conifers, 339 Or at 143 (“take”
implies that governmental acts resulting in “the appro-
priation of private property for public use” will constitute
a compensable taking). In other words, the intrusion on
private property interests must be confiscatory in nature.
Beyond that, drawing on conventional principles, our cases
have established that the concept of a compensable taking
is not limited to real property; it includes personal property
as well, at least when that property is permanently taken.
Hawkins v. City of La Grande, 315 Or 57, 69-70, 843 P2d
400 (1992). Nor is the concept limited to the physical or
tangible property itself; it encompasses as well the owner’s
348 Dunn v. City of Milwaukie
fundamental legal interests in property, such as the right
to possess, use, and dispose of property. See Cereghino, 230
Or at 445 (citing authorities). But whether the invasion is to
real property or personal property, and to the physical prop-
erty or the intangible but essential rights of ownership in
it, the one principle that holds true is that the government’s
conduct must be “tantamount to a public appropriation” of
property, both in nature and in degree. See generally Coast
Range Conifers, 339 Or at 147 (discussing various tests and
observing that, under them, government act must be “tanta-
mount to a public appropriation of private property”).
The vexing problem over time has been distin-
guishing between intrusions that amount to a taking and
those that do not. In our state constitutional jurisprudence,
no single or uniform legal test has emerged. Id. at 146-47.
Instead, this court has distinguished among takings claims
depending on the nature of the governmental action that
gives rise to the claim. Id. at 146. Thus, for example, the
court has consistently found a taking when government has
intentionally authorized a physical occupation of private
property that substantially has interfered with the owner’s
rights of exclusive possession and use. See, e.g., Vokoun, 335
Or at 31 (applying that test to claim based on governmental
diversion of storm water onto private property); Morrison v.
Clackamas County, 141 Or 564, 568-69, 18 P2d 814 (1933)
(same). On the other hand, when governmental regulation,
rather than physical occupation, restricts a property owner’s
right of possession, enjoyment, and use, the test is whether
the property retains some economically viable or substan-
tial beneficial use. See, e.g., Boise Cascade Corp. v. Board
of Forestry, 325 Or 185, 198, 935 P2d 411 (1997) (apply-
ing some economically viable use test to regulatory taking
claim); Dodd v. Hood River County, 317 Or 172, 182, 855 P2d
608 (1993) (applying some substantial beneficial use test to
regulatory taking claim).
There likewise has developed no uniform or single
test under the federal takings clause,7 on which Article I,
section 18, was modeled. Coast Range Conifers, 339 Or at
7
The Fifth Amendment to the United States Constitution, as relevant here,
provides, “[N]or shall private property be taken for public use, without just
compensation.”
Cite as 355 Or 339 (2014) 349
144 (discussing federal roots of Article I, section 18). The
United States Supreme Court has recognized that there is
a nearly infinite variety of ways that government action or
regulation can affect property interests. Arkansas Game and
Fish Com’n v. U.S., ___ US ___, 133 S. Ct. 511, 518, 184 L. Ed.
2d 417 (2012). Because of that, no “magic formula” has been
identified to enable federal courts to determine, in every
variety of case, whether a given interference with property
is a taking. Id. Only a few bright lines have developed, for
purposes of the federal takings analysis. One is that a per-
manent physical occupation of property authorized by gov-
ernment for a public purpose is a taking. Id. (citing Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426,
102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)). Likewise, a regula-
tion that permanently divests a property owner of all eco-
nomically beneficial use of land is a taking. Id. (citing Lucas
v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112
S. Ct. 2886, 120 L. Ed. 2d 798 (1992)). For claims that do not
fall within those bright line categories, however, the federal
analysis depends on “situation-specific” factual inquiries.
INTENT AS AN ELEMENT OF A TAKINGS CLAIM
With those general principles as a backdrop, we
turn to the issue that this case presents: the role of intent in
analyzing whether government action has de facto given rise
to a compensable takings claim. As noted, under our state
case law, the intentional physical occupation or invasion
of property by government for a public purpose generally
amounts to a taking, if there is a substantial interference
with the property owner’s protected interests. Vokoun, 335
Or at 26; Morrison, 141 Or at 568-69.8 The parties agree in
8
We emphasize, as Coast Range Conifers held, that there is no unitary test
for takings claims, and the test varies with the nature of the claim. 339 Or at 146-
47. We concern ourselves in this case only with a physical invasion of property,
one that results in damage to that property. As Coast Range Conifers observed,
this court consistently has held intent to be an element of such a takings claim.
Id. at 146. Our analysis therefore is confined to that context and does not neces-
sarily extend to other forms of takings claims, such as those based on regulation
or planning (e.g., Dodd, 317 Or at 181; Fifth Avenue Corp. v. Washington Co., 282
Or 591, 608-14 (1978)); nuisance (e.g., Thornburg v. Port of Portland, 233 Or 178,
180, 376 P2d 100 (1963); Lincoln Loan v. State Hwy. Comm., 274 Or 49, 55, 545
P2d 105 (1976)); or cases involving physical occupations of a kind that amount to
an ongoing easement (e.g., Cereghino, 230 Or at 446).
350 Dunn v. City of Milwaukie
this case that, to prevail on her inverse condemnation claim,
plaintiff must prove that the government acted intention-
ally. The parties further agree that intent can be inferred
from the circumstances, as our cases also hold. Vokoun, 335
Or at 29. The dispute in this case centers on what intent
entails in this context, and the nature and quality of the
evidence that will thus suffice to prove intent. Although our
past cases have not explored that issue directly, they provide
significant guidance, as do the general principles underly-
ing Article I, section 18.
This court first articulated intent as an element of
a takings claim in Gearin v. Marion County, 110 Or 390,
402, 223 P. 929 (1924). There, according to the plaintiff’s
complaint, an unusual flood caused the Willamette River to
overflow its banks and cover a large portion of the plaintiff’s
land to a depth of about eight feet. The same flooding condi-
tions caused logs, trees, stumps, and other debris to collect
around the piers on a bridge over the river, which threatened
to wash out the bridge. County employees cleared the debris
and, in doing so, moved it to a place where it floated across
the plaintiff’s property, instead of into the main channel of
the river. The debris, in turn, caused damage and destruc-
tion to buildings, and to the contents of the buildings, on the
plaintiff’s land. Id. at 392-93. Without extensive analysis,
this court rejected the plaintiff’s takings claim because the
county’s actions in clearing the debris “were done without
any intention to exercise the power of eminent domain or to
take [the] plaintiff’s property or any part thereof for a pub-
lic use[.]” Id. at 402. Instead, the claim sounded “purely in
tort.” Id. at 401.
Nine years later, in Morrison, this court adhered to
the idea that, to be a taking, a physical occupation of private
land by the government had to be intentional, but unlike in
Gearin, found the pleadings sufficient to allege the required
intent. In Morrison, Clackamas County had built a jetty
that directed a portion of the Sandy River toward the plain-
tiff’s property. During the next annual high water, the jetty
diverted the river’s flow over the plaintiff’s property, destroy-
ing the surface of the land as well as the improvements on
it. Morrison, 141 Or at 566-67. The court rejected the idea
Cite as 355 Or 339 (2014) 351
that the intent required for a taking was “specific intention
on the part of [the] defendant to appropriate [the] plaintiff’s
property[.]” Id. at 569. Instead, the court declared, a gov-
ernmental actor can “be held to have intended to do those
things which are the natural and ordinary consequences of
[its] act.” Id. Morrison thus was the source of the “natural
and ordinary consequences” test at issue in this case.
Morrison did not discuss the contours of that test
explicitly. But the sources from which the court drew, as well
as the court’s application of the test to the case before it, sug-
gest that that test expressed a distinctive concept: Natural
and ordinary consequences were those that were the neces-
sary or certain result of the government’s authorized acts.
Morrison described the complaint, for example, as having
alleged that “the natural and necessary effect” of the con-
struction of the jetty was to alter the flow of the river in
such a way as to force its full flow “immediately toward and
against [the] plaintiff’s land.” Id. at 566 (emphasis added).
“Natural and ordinary” consequences, as the court used
those terms, did not mean simply effects or consequences
that could possibly or plausibly follow; they were ones that
ordinarily would follow, as a matter of course and with an
element of certainty. Immediately after declaring that the
government could be held to intend the natural and ordi-
nary consequences of its acts, the court captured that idea
again by observing of the alleged facts before it: “Doubtless
the defendant county intended to construct the jetty. The
natural consequence, of course, followed.” Id. at 569 (empha-
sis added). Two cases cited by the court in support of its
approach similarly emphasized that, where a government
action results in a physical invasion of property, a taking
arises only if the injurious invasion was the necessary, inev-
itable, or otherwise certain consequence of the government’s
intentional act. See Miller v. City of Morristown, 47 NJ Eq
62, 66-67, 20 A 61, 63 (1890) (for purposes of takings claim,
government can be held to have intended the natural “and
inevitable” consequences of its acts); Great Northern Ry.
Co. v. State, 102 Wash 348, 356, 173 P. 40, 43 (1918) (taking
arises where damage is “necessary” result of government
activity and cannot be avoided).
352 Dunn v. City of Milwaukie
The intent element of a takings claim did not sur-
face again as a significant issue in any of this court’s cases
again until Vokoun, which this court decided nearly 80 years
after Morrison first articulated the “natural and ordinary
consequences” test.9 In Vokoun, the City of Lake Oswego
had constructed a storm drain that ran underground near
the plaintiffs’ property and released water into a ravine at
the base of the hillside on which the plaintiffs’ house sat.
Vokoun, 335 Or at 21-22. During the 25 years that followed,
the storm drain created a drainage course in the ravine and
undermined the hillside, ultimately causing a landslide that
destroyed much of the plaintiffs’ property. Id. at 30. The trial
court denied the city’s motion for directed verdict, and the
Court of Appeals reversed, concluding that plaintiffs’ inverse
condemnation action was predicated on the city’s negligence,
which was insufficient to establish a takings claim. Id. at
24-25. On review to this court, the plaintiffs argued that
the City of Lake Oswego should be liable for the damage
to their property, regardless of whether the consequences of
constructing the storm drain were expected or intended. Id.
at 26.
This court reaffirmed that negligence alone will not
support a claim for inverse condemnation and that intent
to take is an element of such a claim. Id. at 27. In doing
so, the court reiterated Morrison’s observation that specific
intent is not required and that the government can be held
9
The principal cases touching on the intent element of a takings claim
between the time that Morrison and Vokoun were decided were Tomasek, 196
Or 120, and Hawkins, 315 Or 57. Neither provides any particular guidance here.
In Tomasek, the principal issue was whether the state was immune from suit on
an inverse condemnation theory. 196 Or at 140. The court recited and quoted
at length from prior cases involving takings claims, including Morrison and its
statements on the element of intent. Id. at 142-51. The court did so, however, only
in the course of analyzing whether the state was amenable to suit on an inverse
condemnation theory. Although the defendant disputed the sufficiency of the evi-
dence to support a takings claim, the defendant’s challenge focused on whether
natural causes, as opposed to the government’s construction of a bridge and relo-
cation and grading of a highway, were the cause-in-fact of the injury to the plain-
tiff’s property. Id. at 139-40. The adequacy of the plaintiff’s proof of intent was
not an issue. In Hawkins, it was undisputed that the city-defendant had released
sewage “intentionally” when storm conditions overran the capacity of its sewage
treatment facility. 315 Or at 60. Although Hawkins implicitly treated intent as an
element of the takings claim in that case, neither the nature and quality of the
evidence required to prove intent nor the legal adequacy of the evidence of intent
were issues on appeal.
Cite as 355 Or 339 (2014) 353
to have intended the natural and ordinary consequences of
its act. Id. at 28. The parties’ arguments did not directly
dispute the nature and quality of what a plaintiff should
be required to prove under that test. As a result, the court
did not explore that question. But the court implicitly rec-
ognized, as Morrison’s broader discussion had as well, that
the concept encompassed more than an indirect causal
connection between the government’s acts and the phys-
ical invasion of and damage to a plaintiff’s property. The
court began by discussing Morrison and its ordinary and
natural consequences test, observing that in Morrison the
court had found the complaint sufficient to state a claim
because the plaintiff had pleaded that the county in that
case had “intended to construct the jetty in a manner that
necessarily caused the flooding that destroyed the plaintiff’s
property[.]” Id. The court then cited Levene et ux v. City of
Salem, 191 Or 182, 196-97, 229 P2d 255 (1951), noting that
it was in accord with Morrison, for the proposition that a
taking arises when government diverts the flow of a stream
or constructs a drain or sewer in such a way that flooding of
private property is “a necessary result” of the construction.
Vokoun, 335 Or at 28. And, in concluding that the plaintiffs’
evidence was sufficient to create a jury question on intent,
the court described the evidence as permitting the reason-
able inference that the landslide caused by water discharg-
ing from the storm pipe “was the natural and ordinary (even
inevitable) consequence” of the manner in which the city had
intentionally constructed the storm drain. Id. at 30 (empha-
sis added).10
10
Elsewhere in the opinion, Vokoun’s analysis may have been less exacting.
In describing the sufficiency of the evidence in that case, the court explained
that there was no dispute that the storm drain had caused erosion in the drain-
age channel. And although the parties disputed the cause of the landslide, the
evidence was that the hillside had been stable before the storm drain was built;
there had been no drainage course in the ravine before then; the resulting drain-
age was “consistent with the way that the drain had been designed and built;”
and there had been no intervening causes. Vokoun, 335 Or at 29-30. From that
evidence, the court concluded, a jury could infer that the landslide was “the nat-
ural and ordinary (even inevitable) consequence of the city’s construction of the
storm drain in that manner.” Id. at 30. To the extent that Vokoun can be read to
permit causation-in-fact alone to suffice, we disavow that understanding for the
reasons we explain in this opinion. If, however, Vokoun relied on the fact that the
landslide was the necessary or inevitable result of the manner in which the drain
had been constructed, then it is consistent with Morrison and other previously
decided cases, as well as with the test that we adopt in this case.
354 Dunn v. City of Milwaukie
As that description of the case law conveys, where
compensation is sought for injuries caused by physical inva-
sions or occupations of property, the intent element of a tak-
ings claim is fundamental in distinguishing between those
actions that are the equivalent of an exercise of eminent
domain and those that are actionable as ordinary torts. The
power of eminent domain is affirmative in nature. It is a
power exercised for a particular purpose—the public’s bene-
fit—and intentionally. The idea that the sovereign’s power of
eminent domain could be exercised through error, accident,
or inadvertence, is at odds with the nature of the power
itself. Inadvertent and unintended acts give rise to liabil-
ity, if at all, as ordinary torts, not takings. As the Seventh
Circuit Court of Appeals has pointedly put it:
“So when does error ‘take’ property? Suppose agents of
the FBI, while chasing a kidnapper, demolish someone’s
car, or suppose a postal van runs over a child’s tricycle.
Do these accidents ‘take’ the car and tricycle? Certainly
they are casualties of the operation of government. *  * *
Accidental, unintended injuries inflicted by governmental
actors are treated as torts, not takings. And torts are com-
pensable only to the extent the Federal Tort Claims Act
permits. The Court has never treated limitations on lia-
bility in tort as mere pleading obstacles, to be surmounted
by shifting ground to [a takings claim brought under] the
Tucker Act.”
Chicago, Milwaukee, St. Paul and Pacific R. Co. v. U.S., 799
F2d 317, 325-26 (7th Cir 1986), cert den, 481 U.S. 1068 (1987).
Intent, as an element of a takings claim based on a physi-
cal intrusion or occupation of property, serves the important
function of helping to distinguish between acts that are tan-
tamount to appropriations of private property for a public
purpose and those for which a remedy lies only in tort.11
11
Some courts have expanded “takings” law to reach government negligence,
often “to circumvent the traditional immunity of governmental bodies from lia-
bility for tort[.]” A. W. Gans, Damage to Private Property Caused By Negligence
of Governmental Agents as “Taking,” “Damage,” or “Use” for Public Purposes, in
Constitutional Sense, 2 A.L.R. 2d 677, 680 (1948), see generally id. at 681-87 (can-
vassing case law). Other jurisdictions have a more expansive test for government
takings, because the takings clauses of their constitutional provisions expressly
require compensation for government actions that “damage” private property as
well as those that “take” private property. See Moeller et ux v. Multnomah County,
218 Or 413, 425-27, 345 P2d 813 (1959) (contrasting Oregon Constitution’s tak-
ings clause with those of states that include “damage” provisions, which has led
Cite as 355 Or 339 (2014) 355
THE NATURAL AND ORDINARY
CONSEQUENCES TEST
If the natural and ordinary consequences test
is understood as Morrison and later cases appear to have
meant it—that is, as permitting an inference of the requi-
site intent to take when the consequences of governmental
action are necessary, inevitable, or substantially certain
to result—the test serves well. But the test has the poten-
tial to be misunderstood as allowing intent to be inferred
based on simple causation alone. The Court of Appeals, in
fact, appears to have applied the test in that way in its opin-
ion in this case. The court began by phrasing the test as
one that looked to “a” natural and ordinary consequence,
rather than “the” natural and ordinary consequence, of the
government’s action. Dunn, 241 Or App at 102. The shift,
although subtle, conveys a different idea. Something that
is “the” natural and ordinary consequence implies that it
will follow with a degree of certainty. Something that is “a”
natural and ordinary consequence implies that it is one of
many possible consequences, so that it might or might not
follow from the government’s actions. That rephrasing by
the Court of Appeals led to an analysis that appears to allow
an inference of intent when the government’s act is simply a
but for cause of the invasion or damage to property:
“The question *  * is whether the result is a natural and
*
ordinary consequence of the government’s action at the
time and place where that action occurred. *  * a conse-
*
quence that was the last link in a chain of events that began
with the governmental action and proceeded, without
unnatural or extraordinary intervening causes, to produce
the damage.”
Id. (emphasis added). In other words, as long as the gov-
ernment’s actions were a cause-in-fact of the injury to
those states to extend compensation to a broader range of cases); see generally
Patterson v. Horsefly Irrigation Dist., 157 Or 1, 18, 69 P2d 282 (1937) (empha-
sizing that “unnecessary damage,” as often occurs from negligence, is at odds
with exercise of eminent domain power, which arises from necessity of taking
private property for public purpose). Oregon, however, has abrogated its sover-
eign immunity for torts and has no damage provision in its takings clause. Both
considerations are additional reasons to adhere to requiring intent as an element
of a takings claim in this context.
356 Dunn v. City of Milwaukie
plaintiff’s property, that was enough to render the conduct
“intentional.”12
That articulation and application of the natural
and ordinary consequences test is not faithful to what the
test was designed to convey. The phrase itself—natural and
ordinary consequences—imports a stronger relationship
between the government’s act and the result that follows. In
particular, it conveys that, in the ordinary course of events,
a certain act will naturally have a certain consequence.13
That consequence, because it is the natural one that will
ordinarily follow, 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.
That is how Morrison understood and applied the phrase,
as we have explained. 141 Or at 566 (complaint adequately
alleged that natural and “necessary” effect of jetty construc-
tion was to alter flow of river across plaintiff’s land during
seasonal flooding). It is also consistent with the relationship
between the government’s act and the resulting injury to
property required by the cases that Morrison cited with
approval, which looked to whether the resulting injury was
the inevitable and necessary result of the government’s act
in the sense that it was sure to follow. Miller, 47 NJ Eq at
66-67, 20 A at 63; Great Northern Ry. Co., 102 Wash at 356,
12
We are not alone in reading the Court of Appeals opinion to have so trans-
formed the test. Others have described the Court of Appeals’ analysis in this
case as “a tort-like proximate cause test to determine whether there is a suffi-
cient causative link between the government action and the plaintiff’s harm.”
Jan G. Laitos and Teresa Helms Abel, The Role of Causation When Determining
the Proper Defendant in a Takings Lawsuit, 20 Wm & Mary Bill Rts J 1181, 1184
(2012).
13
Certainty or inevitability, in this context, does not require—at least not,
necessarily—regularity or frequency. If, in the ordinary course of events, particu-
lar circumstances are substantially certain to occur on a seasonal or other inter-
mittent basis (such as flooding), and if the government’s actions will necessarily
result in an invasion of a plaintiff’s property when those circumstances arise (as
with a bridge that will divert water onto a plaintiff’s land when flood waters rise
sufficiently), such a result can be found to be certain and inevitable for purposes
of a takings claim. Compare Ridge Line, Inc. v. U.S., 346 F3d 1346, 1356 (Fed Cir
2003) (repeated increased rain runoff caused by government development, even
though intermittent, an intentional taking if runoff was the “direct, natural, or
probable result” of development) with Thune v. U.S., 41 Fed Cl 49, 52-53 (1998)
(no intent to take could be inferred where deliberately set forest service burn
went out of control due either to negligence or unexpected and unforecast wind
change, damaging private property).
Cite as 355 Or 339 (2014) 357
173 P. at 43. And, finally, a test that looks to the inevita-
bility or certainty with which particular results will follow
from particular government action appears consistent with
the way that the natural and ordinary consequences has
been understood by courts in general, and federal courts in
particular.14
We decline the city’s and amicus League of Oregon
Cities’ invitation to modify the test for intent in this context
by adopting the Restatement (Second) of Torts (1965) defi-
nition. Under the Restatement, a person acts intentionally
when “the actor desires to cause consequences of his act, or
* * * he believes that the consequences are substantially cer-
tain to result from it.” § 8 A. As the Restatement formulates
the test, intent requires either specific intent or a state of
mind that serves as a surrogate for specific intent (a person’s
subjective knowledge that particular consequences are “sub-
stantially certain” to result from the person’s act). Morrison
rejected specific intent as a requirement for a taking. 141 Or
at 569. Vokoun reaffirmed that aspect of Morrison. 335 Or at
28. Neither the city nor the amicus articulate a persuasive
reason for us to impose a specific intent requirement—or
something close to it—where we have not before.15
14
Morrison’s understanding of the certainty required of the test that it
embraced is consistent with how that test appears to have been used in other
cases during that same time period, particularly federal cases. Although the test
was sometimes termed the “natural and probable consequences” test, as well as
the “natural and ordinary consequences test,” both looked to the certainty with
which the consequences would follow government action. See, e.g., Jed Michael
Silversmith, Takings, Torts & Turmoil: Reviewing the Authority Requirement of
the Just Compensation Clause, 19 UCLA J Envtl L & Pol’y 359, 379-83 (2001)
(natural and probable consequences test, as used in Fifth Amendment cases for
more than 100 years, addresses certainty; destruction of a plaintiff’s property
could be ascertained to a certainty before the government engaged in its autho-
rized conduct).
15
Other jurisdictions with similar constitutional provisions have adopted
either the Restatement intent test or one akin to it in the inverse condemnation
context. See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex 2004) (government
is liable for inverse condemnation if it “knows that the specific property damage is
substantially certain to result from an authorized government action”); Electro-
Jet Tool Mfg. Co., Inc. v. City of Albuquerque, 114 NM 676, 683, 845 P2d 770,
777 (1992) (“acting with knowledge that the damage was substantially certain to
result from [government] conduct” gives rise to a takings claim); Robinson v. City
of Ashdown, 301 Ark. 226, 231-32, 783 S.W.2d 53, 56 (1990) (government’s knowl-
edge that “an invasion of another’s interest in the use and enjoyment of land is
substantially certain to result” from its conduct results in an intentional act). But
in general, state tests for what constitutes a compensable taking are all over the
358 Dunn v. City of Milwaukie
But, contrary to plaintiff’s argument, the natural
and ordinary consequences test can benefit from clarifica-
tion. If, as happened in this case, it is understood as per-
mitting an inference of intent from “but for” causation, then
the test eliminates the requirement of intent altogether. So
transformed, the natural and ordinary consequences test
does not adequately distinguish between governmental neg-
ligence and intentional takings and does not serve the con-
stitutional principle at work.
The natural and ordinary consequences test, as
originally embraced in Morrison, conveys a sound concept,
and we adhere to it as clarified by our analysis in this case.
The test examines whether the government intentionally
undertook to act “in a manner that necessarily caused” the
injurious invasion of the plaintiff’s property. Vokoun, 335 Or
at 28 (citing Morrison, 141 Or at 569). A factfinder is entitled
to impute the requisite intent to take property if the inva-
sion to the property owner’s interests was the necessary,
substantially certain, or inevitable consequence of the gov-
ernment’s intentional acts. In other words, a plaintiff need
not prove that the governmental actor subjectively intended
the consequential invasion of property interests or under-
took action knowing (even if not desiring) that the conse-
quences would follow. Evidence of specific intent, although it
will suffice, is not required. And although a plaintiff’s bur-
den is less than specific intent would make it, it is still exact-
ing. A plaintiff still must show that the government inten-
tionally undertook its actions and that the inevitable result
of those actions, in the ordinary course of events, was the
invasion of the plaintiff’s property that is the basis for the
board, in part because state jurisprudence developed without any common-law
antecedents and independently of federal law, and because a state action has
traditionally been a prerequisite to pursuing a claim under federal law. See gen-
erally Jadd F. Masso, Mind the Gap: Expansion of Texas Governmental Immunity
Between Takings and Tort, 36 St. Mary’s L J 265, 270-72 (2005) (discussing devel-
opment of takings law in United States). States, in particular, vary significantly
in whether intent is required to prove a compensable taking and, if so, whether
specific intent or some other test of intent is required. Id. at 277-84 (discussing
state and federal case law); see also James S. Burling and Luke A. Wake, Takings
and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages,
in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51
(ALI-ABA Committee on Continuing Professional Education eds., 2011) (discuss-
ing state cases).
Cite as 355 Or 339 (2014) 359
plaintiff’s inverse condemnation claim. Thus, if a plaintiff’s
best evidence is that the invasion was a less than certain
consequence—such as a conceivable, possible, or plausible
outcome, or one that otherwise might or might not occur—
that is not enough for a factfinder to infer that the invasion
was intentional.
ANALYSIS OF THIS CASE
The remaining question is whether plaintiff’s evi-
dence in this case meets the natural and ordinary conse-
quences test as we have clarified it. Plaintiff argues that the
jury could infer the city’s intent to cause the sewage backup
in plaintiff’s house from evidence that the backup “was the
direct consequence of the [c]ity’s purposeful act of blasting
high-pressure water *  * into the sewer line adjacent to
*
[p]laintiff’s house.” Such an inference is particularly appro-
priate, plaintiff argues, because she never argued to the
jury or presented any testimony or evidence that the city
acted negligently by failing to exercise reasonable care in
cleaning the sewer lines to and around plaintiff’s house.
According to plaintiff, there was no evidence of “unnatural
or extraordinary intervening events” that caused the dam-
age to plaintiff’s property. On the contrary, asserts plain-
tiff, “everything was done ‘by the book.’ ” Plaintiff concludes
that, because there was no evidence that the city acted neg-
ligently, “there was sufficient evidence that the invasion of
sewer water was the natural and ordinary consequence of
the [c]ity’s actions and intent could therefore be inferred.”16
The fact that conduct is not negligent does not estab-
lish, however, that it is intentional. As classically conceived
in the law, intent is a state of mind. Prosser and Keeton on
the Law of Torts § 8, 34 (W. Page Keeton ed., 5th ed 1984).
Negligence, on the other hand, is conduct and not a state of
mind. Id. at § 31, 169. The “essence” of negligence is “behav-
ior which should be recognized as involving unreasonable
danger to others.” Id. As Prosser explains the tort concepts
of negligence and intent:
16
As earlier noted, plaintiff initially advanced a negligence claim as well, but
that claim was dismissed before trial. That procedural posture of the case leaves
plaintiff in the unusual position of having advanced a negligence claim while
simultaneously relying on the lack of evidence that the city acted negligently.
360 Dunn v. City of Milwaukie
“In negligence, the actor does not desire to bring about the
consequences which follow, nor does he know that they are
substantially certain to occur, or believe that they will.
There is merely a risk of such consequences, sufficiently
great to lead a reasonable person in his position to antici-
pate them, and to guard against them.”
Id. Thus, negligence and intent are not flip sides of the same
coin; they are different coins. For a person to act not negli-
gently does not establish how he did act or with what mental
state.17 The person could have acted with intent, but a range
of other possibilities exists as well, including the possibility
that what happened was purely accidental or inadvertent,
and not due either to negligence or intent.18
But more to the point, under the natural and ordi-
nary consequences test as we have clarified it, the issue in
this case turns on the certainty or inevitability that the
city’s act of hydrocleaning the sewer would cause the sew-
age backup into plaintiff’s home. Here, there is no dispute
that the city’s manner of hydrocleaning the sewer, using
high-pressure water, was intentional. The disputed issue
17
Of course, on this record, there is no evidence or jury determination that
the city was “not negligent.” There instead is simply a void left by the dismissal of
plaintiff’s negligence claim. Even if, however, this record established that the city
was “not negligent,” as plaintiff argues, the argument fails, as we have explained.
Classic logic provides a further explanation for why it fails. Plaintiff’s argument
suffers from the “fallacy of negative premises.” Judge Ruggero J. Aldisert dis-
cusses the fallacy in his book Logic for Lawyers: A Guide to Clear Legal Thinking
156 (3d ed 1997), explaining that, when two premises of a syllogism are negative,
“we cannot determine anything regarding their relationship to one another.” By
way of example, Judge Aldisert points out that, “[f]rom the premises, James is
not a lawyer; lawyers are not steelworkers, we cannot conclude that James is or is
not a steelworker.” Id. Likewise, from the premises that the city workers in this
case did not act negligently and negligent acts are not intentional acts, we cannot
conclude that city workers did or did not engage in intentional conduct. As Judge
Aldisert emphasizes, “Not knowing that something exists is simply not knowing.”
Id.
18
As Prosser further explains, early common law imposed strict liability
for trespasses that resulted in injury to person or property, with the result that
purely accidental injuries were actionable; all that was required was a voluntary
act. Prosser and Keeton on the Law of Torts, at § 29, 163. But the rule now is
that liability generally does not attach for an “unavoidable accident,” which is an
occurrence that was not intended and that, under all the circumstances, could
not be foreseen or prevented by the exercise of reasonable precautions. Id. at § 29,
162. To be sure, as Prosser emphasizes, no accident “is entirely inevitable, so long
as it results from a voluntary human act[,]” because the harm might have been
avoided had the human act not been undertaken. Id. But liability now does not
arise in the absence of “some wrongful intent or negligence.” Id. at § 29, 163.
Cite as 355 Or 339 (2014) 361
at trial was whether anything more was required to estab-
lish that the alleged taking was intentional and, if so, what.
Here, as we have explained, to establish intent, plaintiff
also had to show that the backup into her home was the
necessary result of the city’s intentional actions.
As a matter of law, plaintiff’s proof, viewed in the
light most favorable to her, was not sufficient to meet that
test. The record establishes that the city regularly cleans
its sewers using the hydrocleaning process. Despite that
fact, backups of sewage into adjacent houses due to the city’s
hydrocleaning are rare and uncommon occurrences. Indeed,
they are so uncommon that one city worker, who had been
cleaning city sewers for seven years, personally had experi-
enced only the backup at issue in this case. And, by the time
of trial almost two years after this back-up, he had heard of
only one other. No one could explain why this backup into
plaintiff’s house occurred while, day in and day out, the city
hydrocleans sewers without similar backups occurring. To
be sure, on this record, a factfinder could find that the city’s
hydrocleaning was a “but for” cause of the backup. But some
other factor, one not identified on this record, had to be at
work as well.
The conclusion most favorable to plaintiff on this
record is that the intrusion of sewage water into one or more
nearby houses was a known risk of hydrocleaning generally,
but one that rarely came to pass. Under the natural and
ordinary consequences test, for the city to be found to have
intended the invasion of plaintiff’s property, and not just the
acts that, in some causal way, led to or contributed to that
invasion, the evidence had to establish the likelihood of that
invasion with greater certainty. Without any evidence that
the sewage backup into plaintiff’s house was the necessary,
certain, predictable, or inevitable result of the city’s inten-
tional manner of hydrocleaning the adjacent sewer, the evi-
dence was insufficient to support plaintiff’s inverse condem-
nation claim. The trial court should have directed a verdict
for the city on that claim, and the Court of Appeals erred in
concluding otherwise.19
19
Our conclusion on these facts accords with those of courts in other juris-
dictions that have resolved takings claims based on sewage overflow into pri-
vate houses. See, e.g., City of Dallas, 142 S.W.3d at 315 (evidence established that
362 Dunn v. City of Milwaukie
We emphasize that plaintiff and other property own-
ers who suffer property damage under circumstances of this
kind are not necessarily without any remedy. Oregon has
abrogated its traditional sovereign immunity; both the state
and other governmental units can be sued on common-law
tort theories. A property owner in Oregon therefore has the
same recourse against the government as against a private
tortfeasor, subject to the requirements of the Tort Claims Act
(ORS 30.260 - 30.302).20 Plaintiff in fact attempted to pursue
a tort claim in this case, but the trial court dismissed it for
lack of timely notice. Because the Court of Appeals affirmed
the trial court’s denial of the city’s motion for directed ver-
dict, it declined to address plaintiff’s cross-assignments of
error regarding the trial court’s dismissal of her tort claim.
Dunn, 241 Or App at 97 n 2. Plaintiff’s arguments in that
city efforts to unclog sewer lines did not ordinarily cause residential flooding;
no taking was shown given lack of evidence that damage was substantially cer-
tain to occur and that city took actions with knowledge of that fact); Edwards v.
Hallsdale-Powell Utility Dist. Knox County, Tenn., 115 S.W.3d 461, 467 (Tenn 2003)
(no showing that backup of sewer was caused by purposeful or intentional act in
maintenance of sewer lines, as opposed to clog from natural causes or negligence
of utility district). Some courts have reached the same conclusion even though
their state constitutions more broadly guarantee compensation for damage to
property, as well as takings of property. See, e.g., Henderson v. City of Columbus,
285 Neb 482, 496, 827 NW2d 486, 496-97 (2013) (no taking or compensable dam-
age under state constitution for single incident of sewage flooding where evidence
could not support finding that city knew damage would occur from its actions
in responding to malfunction of sewer system); see generally Moeller, 218 Or at
425-27 (contrasting Oregon Constitution’s taking clause with those of states that
include “damage,” which has led those states to extend compensation to a broader
range of cases than Oregon’s clause reaches).
Cases in which property owners have succeeded in sewage invasion takings
claims typically have involved repeated or chronic sewage invasions that permit-
ted a finding that the government, in failing to correct the source of the overflow,
acted intentionally or maintained an intentional nuisance. See, e.g., Robinson,
301 Ark. 226, 228-29, 232, 783 S.W.2d 53, 54, 56 (1990) (recurrent sewage invasion
of plaintiff’s home over nine-year period, caused by chronically malfunctioning
lift station pump, which continued despite plaintiff’s pleas to the city for relief,
was a compensable taking; city knew that invasion was substantially certain to
result from its failure to remedy problem; city appropriated use of plaintiff’s prop-
erty for the public purpose of serving as overflow dump for sewage and appropri-
ately should have to purchase the property so taken); see also DeKalb County v.
Orwig, 261 Ga 137, 138-39, 402 SE2d 513, 514-15 (1991) (whether city’s action was
taking was factual issue for jury where city failed to take remedial action after
first sewage backup, and second sewage backup occurred).
20
To the extent that the conduct in question is not a tort, but instead is
purely accidental or otherwise nonactionable, the protection for a property owner
may lie in the purchase of private insurance to cover such events, whether they
involve governmental or private actors.
Cite as 355 Or 339 (2014) 363
regard remain to be resolved on remand to the Court of
Appeals.
The decision of the Court of Appeals is reversed, and
the case is remanded to that court for further proceedings.