Walton v. Neskowin Regional Sanitary Authority ( 2021 )

124
Argued and submitted December 2, 2019, affirmed September 1, 2021
William B. WALTON,
an individual;
James Jefferson Walton, Jr., an individual;
and Victoria K. Walton, an individual,
Plaintiffs-Appellants,
v.
NESKOWIN REGIONAL SANITARY AUTHORITY,
Defendant-Respondent,
and
Evelyn A. HARRIS,
Trustee of the Harris Living Trust; et al.,
Defendants.
Tillamook County Circuit Court
17CV10996; A168358
498 P3d 325
Plaintiffs appeal a limited judgment dismissing their complaint and a sup-
plemental judgment awarding defendant a money award. In 2017, plaintiffs filed
an inverse condemnation complaint demanding “just compensation” as required
by Article I, section 18, of the Oregon Constitution and the Takings Clause of
the Fifth Amendment to the United States Constitution for the physical occupa-
tion of a main sewer line installed on plaintiffs’ property sometime before 1995.
Defendant filed a motion for summary judgment, arguing that the six-year stat-
ute of limitations, as stated in ORS 12.080, barred plaintiffs’ claim. Defendant
responded to that motion, asserting that (1) the six-year statute of limitations
on takings is unconstitutional; (2) the statute of limitations begins when defen-
dant denies just compensation, not, as here, when the physical occupation taking
occurs; and (3) the six-year statute of limitations, discussed in Suess Builders v.
City of Beaverton, 294 Or 254, 268, 656 P2d 306 (1982), only applies to regulatory
takings, not, like here, a physical occupation taking. The trial court agreed with
defendant and dismissed plaintiffs’ claims. Defendant assigns error to that denial
and reprised those three arguments on appeal. Held: The trial court did not err
in applying a six-year statute of limitations to takings under Article I, section
18, of the Oregon Constitution and the Takings Clause of the Fifth Amendment
to the United States Constitution. Moreover, the statute of limitations applies to
physical occupation takings, like regulatory takings, when the taking occurs.
Affirmed.
Jonathan R. Hill, Judge.
Paul J. Sundermier argued the cause for appellants. Also
on the briefs were Jennifer C. Paul and Saalfeld Griggs PC.
Cite as 314 Or App 124 (2021) 125
Christopher T. Griffith argued the cause for respondent.
Also on the brief were Joshua J. Stellmon, Michael K. Kelley,
and Haglund Kelley LLP.
Before DeVore, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
EGAN, C. J.
Affirmed.
______________
* Egan, C. J., vice DeHoog, J.
126 Walton v. Neskowin Regional Sanitary Authority
EGAN, C. J.
Plaintiffs appeal a limited judgment dismissing
their complaint and a supplemental judgment award-
ing defendant—Neskowin Regional Sanitary Authority
(NRSA)—a money award.1 In 2017, plaintiffs filed an inverse
condemnation complaint demanding “just compensation” as
required by Article I, section 18, of the Oregon Constitution
and the Takings Clause of the Fifth Amendment to the
United States Constitution for the physical occupation of
a main sewer line installed on plaintiffs’ property some-
time before 1995.2 Defendant filed a motion for summary
judgment arguing that the six-year statute of limitations,
as stated in ORS 12.080, barred plaintiffs claim.3 The trial
court agreed and granted defendant’s motion for summary
judgment and later awarded defendant “costs and disburse-
ments” amounting to $682, which is reflected in a supple-
mental judgment. We conclude that the trial court did not
err in applying the six-year statute of limitations, and,
accordingly, affirm.
The following facts are mostly procedural and undis-
puted unless otherwise stated. Defendant buried a main
sewer line on plaintiffs’ property sometime before 1995.
Plaintiffs alleged that their father gave defendant permis-
sion to build the sewer line on their property in exchange
for a “no-charge hook-up [to the sewer line], when at some
later point in time hook-up might be required.” Defendant
disputed that that agreement exists, stating that there “is
no written record * * * offering a ‘free hookup to [plaintiffs’]
property’ ” and instead asserted that it installed the sewer
1
NRSA is the only defendant appearing on appeal.
2
Plaintiffs also argue that their property was unlawfully taken under
Article XI, section 4, of the Oregon Constitution, which states that “[n]o person’s
property shall be taken by any corporation under authority of law, without com-
pensation being first made” in the event that we conclude that NRSA is not a
governmental entity. Defendant concedes, and we agree, that NRSA is a local
government, to which constitutional takings law applies. See ORS 174.116(1)(a),
(2)(r) (defining a “sanitary authority, water authority or joint water and sanitary
authority” as a local government). Thus, we do not further discuss that argument.
3
ORS 12.080, states, as relevant here, that “[a]n action for waste or trespass
upon or for interference with or injury to any interest of another in real property,
excepting those mentioned in ORS 12.050, 12.060, 12.135, 12.137 and 273.241
* * * shall be commenced within six years.”
Cite as 314 Or App 124 (2021) 127
line believing that it had a “prescriptive easement to the
subject property.”
In 2014, defendant required plaintiffs to hook up to
the public sewer because the “septic tank on Plaintiffs’ prop-
erty had failed.” Plaintiffs requested a no-charge hook-up
due to the prior agreement that they alleged they had
with defendant. Defendant denied plaintiffs’ request for a
no-charge hook-up and also denied that they owed plaintiffs
compensation for the physical occupation of the sewer line
on plaintiffs’ property.
Plaintiffs filed an inverse condemnation complaint
in 2017, more than 10 years after the sewer line was installed.
In response, defendant filed a motion for summary judgment
arguing, as relevant here, that “[p]laintiffs’ claims have not
been filed within the applicable statute of limitations.”
At the hearing on defendant’s motion, plaintiffs
argued that there is no statute-of-limitations exception to
the “just compensation” requirement of Article I, section 18,
and the Takings Clause of the Fifth Amendment. In other
words, they argued that “the legislature cannot pass stat-
utes that contravene the constitution, nor should the courts
enforce statutes that contravene the direct mandates of the
constitution.” Alternatively, plaintiffs argued that, in “phys-
ical occupation” takings, there is no statute of limitations,
unlike in regulatory takings, and that, even if there is, that
statute of limitations does not begin to run until “just com-
pensation has been denied.” Defendant responded that a six-
year statute of limitations is applicable and that the statute
of limitations runs from the time the taking occurred—
when the sewer line was placed.
The trial court agreed with defendant, relying on
Suess Builders v. City of Beaverton, 294 Or 254, 268, 656
P2d 306 (1982), and Courter v. City of Portland, 286 Or App
39, 398 P3d 936 (2017), and concluded that applying a stat-
ute of limitations is constitutional and that the statute of
limitations “starts to run when a permanent physical occu-
pation of plaintiffs’ property occurs.” Accordingly, the court
ruled that the six-year limitation period to file an inverse
condemnation action had expired, and it granted defen-
dant’s motion for summary judgment.
128 Walton v. Neskowin Regional Sanitary Authority
On appeal, plaintiffs reprise their arguments and
raise three assignments of error. We begin by addressing
plaintiffs’ first assignment of error, in which they argue that
the state and federal constitutions provide self-executing
protections for physical occupations by the government
and that, consequently, no statute of limitations can apply
to takings claims for those physical occupations. We agree
with defendants that plaintiffs’ arguments are foreclosed by
Suess Builders, 294 Or at 268 (applying a six-year statute of
limitations to a claim under Article I, section 18) and United
States v. Dickinson, 331 US 745, 748-49, 67 S Ct 1382, 91 L Ed
1789 (1947) (applying a six-year statute of limitations to a
claim under the Takings Clause of the Fifth Amendment),
and we are not persuaded by plaintiffs’ efforts to distinguish
those cases. Therefore, we reject that assignment of error.
In plaintiffs’ second assignment of error, they assert
that the statute of limitations began running when defen-
dant refused to pay “just compensation” and not when the
physical occupation occurred. Under Oregon law, that argu-
ment is foreclosed by The Foster Group, Inc. v. City of Elgin,
Oregon, 264 Or App 424, 442, 332 P3d 354 (2014), in which
we concluded that “the statute of limitations on [a] takings
claim, based on [a] city’s physical occupation of property,
began to run when that physical occupation began.”
Similarly, plaintiffs’ claim under the Takings Clause
is unsuccessful. “As a general matter, a statute of limitations
begins to run when the cause of action accrues—that is,
when the plaintiff can file suit and obtain relief.” Heimeshoff
v. Hartford Life & Accident Ins. Co., 571 US 99, 105, 134 S Ct
604, 187 L Ed 2d 529 (2013) (internal quotation marks omit-
ted). Recently, the United States Supreme Court concluded
that an individual may initiate an inverse condemnation
action at the time when the taking has occurred. Knick v.
Township of Scott, Pennsylvania, ___ US ___, 139 S Ct 2162,
2170, 204 L Ed 2d 558 (2019). Here, the taking at issue is the
physical occupation of the property. Accordingly, we reject
defendant’s second assignment of error.4
4
To the extent that plaintiffs argue that a government entity could “sneak
onto somebody’s property and occupy it * * * secretly,” we conclude that we need
not address that issue here. Plaintiffs make no assertion that defendant acted
secretly or in bad faith, nor do they assert that defendant acted fraudulently.
Cite as 314 Or App 124 (2021) 129
In plaintiffs’ third and final assignment of error,
they maintain that the trial court erred when it applied
the six-year statute of limitations set out in ORS 12.080(3)
to a physical occupation. In doing so, plaintiffs attempt to
distinguish Suess Builders, in which we concluded that the
six-year statute of limitations in ORS 12.080(3) applies to a
regulatory taking, from this case, which involves a physical
occupation of property by the government. ORS 12.080(3)
states, “[a]n action for waste or trespass upon or for interfer-
ence with or injury to any interest of another in real prop-
erty * * * shall be commenced within six years.” Plaintiffs
provide no argument other than those that we have rejected
in their first and second assignments of error in support of
their assertion that that statutory provision does not bar
their claims.5 Nor do they cite any other statute to support
that assertion. Under the plain text of ORS 12.080(3), we
conclude that an action based on a physical occupation tak-
ing, which is an action for injury to an interest of another in
real property, must be commenced within six years.
Affirmed.
Rather, it is plaintiffs’ assertion, albeit contested by defendant, that the previous
property owner—plaintiffs’ father—had allowed defendant to install the sewer
line “by permission * * * for a no-charge hook-up, when at some later point in time
hook-up [to the sewer line] might be required by [defendant].”
5
In The Foster Group, Inc., we accepted the parties’ joint premise that an
inverse condemnation claim brought under Article I, section 18, is subject to the
six-year statute of limitations of ORS 12.080(3). 264 Or App at 441. As noted
in the text, we have now considered the merits of that premise and, absent any
persuasive argument to the contrary by plaintiffs, conclude that that premise is
correct.