IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, by and through its )

Department of Transportation,
)
)
Plaintiff-Respondent,
)
Respondent on Review,
)
)
v.
)
)
ALDERWOODS (OREGON), INC., an
)
Oregon corporation, successor by merger )
with Youngs Funeral Home, Inc., an
)
Oregon corporation,
)
)
Defendant-Appellant,
)
Petitioner on Review,
)
)
and
)
)
BANK OF AMERICA, N.A., a national
)
association, as administrative agent,
)
)
Defendant.
)

Washington County Circuit

Court No. C085449CV
CA No. A146317
SC No. S062766
CORRECTED
PETITION FOR REVIEW OF
ALDERWOODS (OREGON),
INC.

Petition to Review the Decision of the Court of Appeals

On Appeal from the Judgment of the Circuit Court of Washington County
Honorable Thomas W. Kohl, Judge
Opinion Filed: September 17, 2014
Authors of Opinions:
Concurring: Armstrong, J., joined by:
Ortega, Duncan, DeVore, and Garrett, JJ.
Concurring: Sercombe, J.
Dissenting: Wollheim, J., joined by:
Haselton, C.J., Nakamoto, J., Egan, J., Tookey, J., and Schuman, S.J.
CORRECTED PETITION FOR REVIEW OF
ALDERWOODS (OREGON), INC.

If review is allowed, petitioner intends to file a brief on the merits.

November 2014

Thomas W. Sondag, OSB No. 844201

Charles F. Hudson, OSB No. 830494
Lane Powell PC
601 SW Second Avenue, Suite 2100
Portland, OR 97204-3158
Telephone: 503.778.2100
sondagt@lanepowell.com
hudsonc@lanepowell.com
Attorneys for Defendant-Appellant, Petitioner on Review
Denise G. Fjordbeck, OSB No. 822578
Attorney in Charge
Civil/Administrative Appeals
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Telephone: 503.378.4402
denise.fjordbeck@doj.state.onus
Attorneys for Plaintiff-Respondent, Respondent on Review

STATEMENT OF FACTS
The Court of Appeals' decision in this case, 265 Or App 572, u Pad
(2014)(Appendix A)omits some facts. Context and clarity are provided by the
following summary.
Procedural Background. This case arises from a condemnation action
brought by the State of Oregon, acting through its Department of Transportation
("ODOT" or "state"). Petitioner on review Alderwoods (Oregon), Inc.
("Alderwoods" or "defendant")(defendant-appellant below)owns property
abutting Highway 99~V in Tigard, Oregon. The complaint alleged the taking of
land for a temporary construction easement and the taking of all of defendant's
abutting rights of access to the highway. The project included improvement of
an existing sidewalk along the length of the property's highway frontage and
physical closure of all of the existing curb cuts abutting the highway.
Prior to trial, ODOT moved in limine to exclude any evidence ofjust
compensation for the taking of access, arguing that the taking was not
compensable as a matter of law where the property retained indirect access
from a side street. The circuit court granted ODOT's motion. Following the
trial court's ruling, the parties entered into a stipulation concerning the evidence
as to compensation for the temporary construction easement and reserving
Alderwoods' right to appeal based on the court's ruling excluding evidence of
just compensation for the taking of access.
The Facts. Alderwoods' property, currently the site of a funeral home, is
a rectangular parcel that occupies approximately one acre of land in the
northwest quadrant of the Highway 217 and Highway 99W interchange in

-11-

Table of Cases
(Continued)
Page
Highway Com. v. Central Paving Co.,
240 Or 71, 399 P2d 1019(1965).................................................................... 14
Holland et al v. Gant County et al,
208 Or 50, 298 P2d 832(1956)................................................................13, 14
Oregon Investment Co. v. Sch~unk,
242 Or 63, 408 P2d 89(1965)...................................................... S, 6, 7, 10, 16
State Highway Com. v. Burk et al.,
200 Or 211, 265 P2d 783(1954)......................................6, 7, 9, 10, 13, 14, 17
Sweet v. I~~igation Canal Co.,
198 Or 166, 254 P2d 700,
~eh'g den, 256 P2d 252(1953)......................................................................... 5
Statutes and Rules
Page
OAR 734-051-0305 ............................................................................................ 17
ORS 35.335 ........................................................................................................ 17
ORS 374.035 ..:............................................................................... 8, 9, 10, 11, 16
ORS 374.055 ............................................................................................9, 10, 11
ORS 374.310(1)..................................................................................................17
ORS 374.310(3).................................................................................................. 18
ORS 374.405 ....................................................................:................... 8, 9, 10, 15
ORS 374.410 ......................................................................................................15
ORS 374.420 ...................................................................................... 7, 10, 15, 16
ORS Chapter 374 .........................:....................................:.................................. 9
Other Authorities
Page
Freeways and the Rights ofAbuttzng Owners,
3 Stanford L Rev 298(1951).......................................................................... 14
Limiting Access to Highways, 33 Or L Rev 16(1953)...................................... 14

STATEMENT OF FACTS
The Court of Appeals' decision in this case, 265 Or App 572, u Pad
(2014)(Appendix A)omits some facts. Context and clarity are provided by the
following summary.
Procedural Background. This case arises from a condemnation action
brought by the State of Oregon, acting through its Department of Transportation
("ODOT" or "state"). Petitioner on review Alderwoods (Oregon), Inc.
("Alderwoods" or "defendant")(defendant-appellant below)owns property
abutting Highway 99~V in Tigard, Oregon. The complaint alleged the taking of
land for a temporary construction easement and the taking of all of defendant's
abutting rights of access to the highway. The project included improvement of
an existing sidewalk along the length of the property's highway frontage and
physical closure of all of the existing curb cuts abutting the highway.
Prior to trial, ODOT moved in limine to exclude any evidence ofjust
compensation for the taking of access, arguing that the taking was not
compensable as a matter of law where the property retained indirect access
from a side street. The circuit court granted ODOT's motion. Following the
trial court's ruling, the parties entered into a stipulation concerning the evidence
as to compensation for the temporary construction easement and reserving
Alderwoods' right to appeal based on the court's ruling excluding evidence of
just compensation for the taking of access.
The Facts. Alderwoods' property, currently the site of a funeral home, is
a rectangular parcel that occupies approximately one acre of land in the
northwest quadrant of the Highway 217 and Highway 99W interchange in

~a
Tigard (Ex 101-102 ; ER 29-30)(aerial photographs)l. Prior to the
condemnation, the property had two physical entrances on Highway 99W,and
two entrances on SW Warner Avenue, adead-end street(Ex 101, 102, 105, and
140 at 12; ER 29-31). Because of Tigard's code(Ex 139 at 1233), the Warner
entrances were located near the back of the property, away from Highway 99W:
one, at the back property line, was the entrance to the funeral home's garage
(Ex 104 at 2); the other, designated as a point of egress, was located behind the
front corner of the funeral home building, and required an angled turn from
Warner(Ex 121, 123; ER 38-39).
While the use of the property as a funeral home had continued from at
least the 1960s, current appraisals of the property concluded that its highest and
best use was for redevelopment to a more intensive commercial use(Ex 140
at 1). The property's zoning would permit afast-food restaurant or, as a
conditional use, a gas station (Id. at 15 and Addendum A). In the opinion of
defendant's experts, preserving some direct access from the highway was
critical for this type of commercial development(Tr 132-136; ER 22-26).
The state filed its action on September 24, 2008 and tools possession of
the property described in the complaint on September 30, 2008(TCF 1; Ex 125;
ER 40). The property to be acquired was described as follows:
All abutter's rights of access, if any, between the
property described in the Exhibit A attached hereto
and the Pacific Highway West.

'References are to trial court exhibits and to excerpts of record submitted

with petitioner's brief in the Court of Appeals.

3
A temporary easement across the property described
as Parcel 2 in the Exhibit A attached hereto, for the
purpose of a work area.
Complaint at 2, paragraph 4(TCF 1). The same language is included in the
judgment entered by the court(TCF 76).
On October 16, 2008, after the condemnation action was filed, and after
it had taken possession of the property, ODOT wrote to the funeral home
manager indicating that it had "come to the attention" of the agency that the
funeral home had an unpermitted approach, which would "be removed from the
state highway right-of-way as part of an upcoming ODOT sidewalk upgrade
project." The letter advised the manager that she could "submit an application
for the approach or provide proof that the approach was in existence prior to
1949." The letter was not directed to Alderwoods' counsel, who had by then
accepted service in the case, and did not become any formal part of the case
until OI70T filed its motions in limine on September 22, 2009, the date of the
first trial setting in the case, when it was attached as an exhibit to State's
Second Motions in Limine(TCF 50).
The case was reset twice, and ultimately went to trial on June 22, 2010, at
which time the court granted the State's First Motion in Limine Regarding
Compensation for Closure of Abutter's Rights of Access on Highway 99W
(TCF 49)without reaching or hearing argument on the State's Second
Motions in Limine or any other motion (Tr 35-37; 103-109).
The evidence proffered by Alderwoods in its offer of proof established
the lack of any prior restriction of access, and that loss of all direct access from
the highway would diminish the property's highest and best use and market

I~

value. Photographic evidence indicated that the property had enjoyed access to
the highway at approximately the same physical locations since at least 1936
(Tr 131-132; ER 21-22), and Alan Brickley, title counsel for First American
Title Insurance Company, would have testified that before ODOT's complaint
was filed, his company would have insured the property's access to Highway
99W based on the absence of restrictions in the chain of title (Tr 129-131; ER
19-21).
George Macoubray, a real estate broker who had represented buyers and
sellers of other commercial properties on Highway 99W in Tigard, would have
testified that before the taking of access the property could have been
effectively marketed for development of a fast food restaurant or service station
(Tr 132-134; ER 22-24); after the takings, however, such buyers would be
unwilling to risk the financial investments required, and the property would
instead be limited to a less valuable office or similar destination use (id.). This
opinion was shared by a second real estate broker experienced with the
development of highway commercial uses(Tr 134; ER 24), and by defendant's
appraiser(Tr 134-136; ER 24-26), who opined that just compensation for the
takings was $127,000, of which more than $115,000 was attributable to the loss
of access(Ex 140 at 32-37).
The Court of Appeals' Opinions. Following oral argument, the case
was taken en banc. On September 17, 2014, the judgment was affirmed per'
cu~iam by an equally divided court. Five judges joined in a concurring opinion
written by Judge Armstrong, with Judge Sercombe submitting a separate

5
concurring opinion, while the Chief Judge and four other judges joined in Judge
Wollheim's dissenting opinion.
The Armstrong Opinion. Although Judge Armstrong's concurring
opinion appears ultimately to rest on the conclusion that there could be no
damage from the taking of abutting rights of access given ODOT's subsequent
administrative closure of the property's physical access to the highway, the
opinion begins by providing a review of"Oregon law on access to public roads
from abutting property." 265 Or App at 576.
In that context, the concurrence acknowledges that "[o]wners of real
property in Oregon have acommon-law right of access to public roads that abut
their property" and that denying access "can constitute a taking of that right for
which compensation would be owed under Article I, section 18, of the Oregon
Constitution." Id. (citing Sweet et al. v. Irrigation Canal Co., 198 Or 166, 254
P2d 700, reh'g den, 256 P2d 252(1953)). In Sweet, construction of an
irrigation ditch blocked access to a county road along a portion of a property's
frontage. The court stated that impairment of access "caused by the use ofthe
highway for other than legitimate highway purposes is a taking within the
meaning of the constitution." 198 Or at 191.
Relying in part on dicta in Sweet, the Armstrong concurrence contrasts
impairment for road purposes: "However, it is well established in Oregon that
governmental regulation or modification of a road for road purposes * * *does
not give rise to a compensable taking of the owner's access right." 265 Or App
at 577(emphasis is the court's). The opinion also cites Oregon Investment
Co. v. Sch~unk, 242 Or 63, 408 P2d 89(1965), involving a challenge to the

closure of street access along one side of a city block, and two alder cases
involving changes of street grade for bridge approaches. Id. at 577-578 (citing
Ba~^~ett v. Union Bridge Company, 117 Or 220, 243 P 93 (1926); Band v.
Multnomah County, 38 Or 79,60 P 390, aff'd on ~eh'g, 38 Or 79,62 P 209
(1900)).
The concurring opinion contrasts the foregoing cases with this Court's
decision in State Highway Com. v. Busk et al., 200 Or 211, 228, 265 P2d 783
(1954), where this Court explained that properties abutting a conventional
highway enjoy an appurtenant easement of access that is "a property right
which cannot be extinguished without compensation." Busk held that where the
state condemns an entirely new roadbed for a limited access highway, rather
than converting a conventional highway, no abutting rights are created and no
taking of such rights can arise. In the process, however, this Court provided a
broader discussion of abutting rights of access. Reading Busk as an exception
to the general rule he perceives in the other cases discussed, Judge Armstrong
explains:
The implicit premise ofthe Busk dictum appears to be
that the conversion of a conventional highway to a
limited access highway is too great a change in the
use of the highway to be included among the changes
to which the access rights of the abutting landowners
can be understood to be subservient. In other words,
landowners can expect their access to a conventional
highway to be subject to impairment as a result of
governmental decisions to regulate or modify the
highway to better serve the public use of the highway
as a highway, including impairment to the point of a
denial of all access to the highway, see, e.g., Sch~unk,
242 Or. at 71, 408 P.2d 89, so long as the impairment
does not result from a decision to convert a
conventional highway to a limited- or non-access

highway and thereby to eliminate "the land-service

function" of the highway.
265 Or App at 579(emphasis in original).
Having described Burk in these terms, Judge Armstrong concludes that
"[t]he distinction implicit in the Busk dictum cannot withstand examination"
because it "does not make sense" to treat the abutting landowners differently
depending on whether or not the change in access stems from the conversion to
a limited access highway. Id. The concurrence also reasons that "the Burk
dictum cannot be squared with the analysis that applies to governmental
regulations that affect land," which generally does not recognize a taking unless
the owner is left with no economically viable use ot'the land. Id. at 579-580.
The opinion next revisits the Court of Appeals' decision in Douglas
County v. Biggs, 34 Or App 409, 413, 578 P2d 1261 (1978)(holding that the
extinguishment of all abutting rights of access to a county road was a taking
requiring a jury's determination of compensation), aff'd on other grounds, 286
Or 1 S 1, 593 P2d 1115 (1979). Noting that this Court affirmed without reaching
the constitutional issue because it found a statutory right to compensation under
ORS 374.420, the concurrence repudiates the Court of Appeals' common law
analysis in Briggs, which it attributes to faulty reliance on "the dictum in Bunk."
265 Or App at S82.
With that "background" the Armstrong concurrence turns to the instant
case, and concludes that "ODOT's regulatory decision to eliminate the curb cuts
and driveways to Highway 99W, which resulted in a loss of access * * *for
which compensation is not owed,see, e.g., Schrunk ," means that "defendant's
property does not have access to Highway 99W irrespective of whether the state.

condemned the access." Id. at 582-583. Therefore, defendant "was not entitled
to recover damages measured by a loss of access that it does not have." Id.
The Sercombe Opinion. Judge Sercombe, although joining in the result
reached by the Armstrong concurrence, adopts a different analysis in his
separate concurring opinion. Judge Sercombe explains that where Judge
Armstrong found a common law right of access that, by the time of trial, was
lost through administrative closure, he would conclude that "defendant never
had a real property interest to use its actual or any other specific, substitute
driveways along its highway frontage." 265 Or App at 584.
In Judge Sercombe's view, absent a specifically defined access, no
underlying property right exists to be taken, since "the only property interest in
street access held by an abutter at common law is a general, unfixed, right to
access the street * * *either directly from the frontage of the property along the
street or' zndi~ectly from a private or public approach that borders the property."
Id. at 587(emphasis added). '"Unless a government takes that entire interest
both the direct and indirect access no compensation is owed under Article I,
section 18." Id. Judge Sercombe also concludes that "neither ORS 374.035
(directly) nor ORS 374.405 (by implication) creates property rights for
particular access to state highways," and "if defendant did obtain a discrete
access right from the state for its driveways," such access would exist only by
permission and the only remedy for closure would be an administrative claim
for compensation. Id. at 589-590 and n 2.
The Wollheim Opinion. Judge Wollheim's opinion for the six
dissenters tools the view that "[c]ontrary to Judge Sercombe's concurrence, it is

E
well settled that, at common law, a landowner whose property abuts a public
highway has a right of direct access to the highway.from the property" that is
"treated * * * as a property right analogous to an easement and cannot be
extinguished through condemnation without compensation." Id. at 596.
Although recognizing that such rights may be subject to regulation, the
dissenting opinion concludes that they may not be acquired in a condemnation
action without a jury determination ofjust compensation.
The dissent finds support for this conclusion in Busk, and in the text and
context of several provisions of ORS Chapter 374 dealing with access rights to
state highways. Id. at 598-599. ORS 374.035 authorizes ODOT to exercise the
power of eminent domain to acquire private easements of access to establish or
maintain a throughway (the purpose alleged in the complaint in this case). Id.
ORS 374.055 provides that in such cases "the entire plan of improvement is
admissible for the purpose of determining * * * [a]ll damages by reason of
deprivation of right of access," and ORS 374.405 proscribes abutting rights of
access for "any state highway constructed * * *after May 12, 1951, upon right
of way, no part of the width of which was acquired prior to May 12, 1951 for
public use as a highway." Id. (citing and quoting statutes). The dissent also
notes that Alderwoods'"view is supported by the legislative history of ORS
374.405," including testimony by the chief counsel of-the Oregon State
Highway Commission. Id. at 599.
While agreeing with Judge Armstrong that the Busk court's construction
of OCLA sections 100-16(a predecessor statute to ORS 374.035(1)) was dicta,
Judge Wollheim found .it to be "persuasive dicta that I would choose to follow."

10
265 Or App at 600, n 6. The dissent rejects "Judge Armstrong's attempted
reconciliation of Burk and Sch~unk ," finding that it "cannot be squared with a
holistic view ofthe case law, which shows that there is a difference between
eminent domain and regulation." Id. at 608-609. In the dissent's view, the
distinction between eminent domain and regulation is important in making
sense of the different results in the cases relied upon by ODOT and the
concurring opinions,"as the state's lawful exercise of its regulatory power to
limit ar even to eliminate access to a public highway for regulatory purposes
does not result in a regulatory taking of an abutting landowner's right of access,
unless the owner is deprived of all reasonable access to the property from the
highway." Id. at 602(emphasis in orginal).
For similar reasons, the dissent rejects the concurring opinions'
suggestion that ODOT's administrative closure of physical access could
eliminate any right to compensation in the condemnation action. Pointing out
that this was not an argument reached by the trial court or made by the state on
appeal, the dissent explained that "the state did not purport merely to regulate
defendant's access to Highway 99W," rather "the state sought also to acqui~^e
defendant's abutter's right of access through.eminent domain." Id. at 597 and
n 4(emphasis in original).
The dissent also found the concurring opinions inconsistent with this
Court's decision in Briggs:
[In Biggs] the court construed ORS 374.420, a statute
similar to ORS 374.035, on which the state relies in
this case as the source of its authority to condemn
defendant's right of direct access and in which the
court held that the county's authority to convert an

11
existing road into a limited access road was
conditioned on the county paying the abutting
landowner for loss of access. Because I conclude that
the state is similarly required to compensate defendant
under ORS 374.035 and to permit defendant to
introduce evidence of damages "by reason of
deprivation of right of access" under ORS 374.OS5, I
would not reach the conclusion that Judge Armstrong
reaches in his concurring opinion that no
compensation is required under the Oregon
Constitution.
Id. at 609.
QUESTIONS PRESENTED AND PROPOSED RULES OF LAW
Questions Presented: This Court has indicated on several occasions that
properties on a state highway or county road enjoy abutting rights of access that
cannot be extinguished without compensation. Does this remain a correct
statement of Oregon law? If so, what is the nature of such rights? Are they an
"appurtenant easement" that contemplates same right of abutting access
between the property and the'road or highwayor, unless specifically located
by a prior deed or judgment, simply the right not to be land-locked?
Proposed Rules: Although it believes the dissenting opinion offers a
sufficient basis for reversal, petitioner argues for a slightly broader
interpretation of Oregon law:
1.

The owner of property abutting a county road or state highway

holds an appurtenant easement for access to that roadway, and such an

easement is a distinct property interest that is subject to regulation but may not
be extinguished without compensation.
2.

When such rights are condemned, or extinguished by regulation,

the compensation due, and the related determination concerning the

~a
reasonableness and adequacy of any remaining access, are questions of fact for
a jury to decide in light of the highest and best use ofthe property.
SIGNIFICANCE OF THE CA5E
This decision by an en Banc, equally divided Court of Appeals presents
significant issues that this Court should examine. It has been 3S years since this
Court decided Douglas County v. Biggs, and as the concurring opinions and
dissent in this case demonstrate, there is continuing disagreement concerning
whether the same statutory analysis should govern abutters' rights of access to
state highways. In addition, there is disagreement and uncertainty concerning.
the nature and extent of any abutting property rights in the absence of statutory
recognition, a question this Caurt identified but did not reach in Biggs.
As the opinions in this case also reflect, there is significant confusion in
the case law surrounding abutting rights of access generally, including
disagreement concerning the meaning of statements made by this Court in Burk
and other cases. The courts and affected state and local governmental agencies
lack a uniform understanding of the nature of these rights, and whether and how
they differ for state highways, county roads, and city streets. There is also
significant disagreement and uncertainty concerning the interplay between
access rights and their regulation under the police power.
These are issues of first impression, and until this Court resolves them, it
will be challenging (at least) for lower courts to harmonize the available
precedents and come to a "holistic view ofthe case law." The issues affect all
owners of property abutting a road or highway, and are common in the
regulation and acquisition of property for road and highway improvements.

13
This case, which involves both a condemnation of all abutting rights and a
purported administrative closure, offers the Court an unusual opportunity to
address Oregon law concerning access rights in a comprehensive way.
The decision in this case conflicts with this Court's prior decisions
addressing abutting rights, and with many of the Court of Appeals' prior
decisions, and these conflicts will leave the trial courts hopelessly at sea.
Finally, the issues are preserved and presented on a straightforward
record, and no obstacles prevent their consideration. Petitioner is aware of one
party who intends to seek permission to appear as amicus curiae if review is
granted, and others who have expressed interest in doing so.
ARGUMENT
A.

Abutting Rights of Access Are Distinct Property Interests, Subject to

Statutory and Constitutional Protection, That May Not Be
Extinguished Without Compensation.
Oregon law provides that the owner of property abutting a county road or

state highway holds an "appurtenant easement" for access to that road that is
subject to regulation but "cannot be extinguished without compensation." State
Highway Com. v. Bu~^k et al., 200 Or 211, 228, 265 P2d 783 (1954). While the
Burk case provides a particularly extensive discussion of abutting rights as
distinct property interest, it is hardly an aberration; the same understanding is
reflected in too many of this Court's early decisions to be solely attributable to
the "dictum in Bu~^k." See, e.g., Holland et al v. Gant County et al, 208 Or 50,
54, 298 P2d 832(1956)("[i]n rural areas an easement of access implies a
reasonable right of ingress and egress from and to the highway from the
property, and not at all points along the highway").

14
A careful reading of this Court's decisions suggests that such easements,
while general, were for direct access between the highway and property. See
Busk, 200 Or at 228-231(discussing the nature ofthe easement and the landservice function of roads2). The right to compensation turned on the existence
and loss of this direct access right, which was distinct from the rights of the
general public, and was not triggered by other kinds of traffic regulation or
changes in the use of the highway as such. See Burk, 200 Or at 230. See also
Holland (abutting right not disturbed by change in route); Highway Com. v.
Central Paving Co., 240 Or 71, 399 P2d 1019(1965)(no compensation for
increased circuity in the absence of an abutting right).
The statutory provisions of ORS Chapter 374 (discussed by the
dissenting opinion) reflect both the legislature's recognition of commonly
acknowledged previously existing property rights,. and a statutory mandate that
they be protected. This is the meaning suggested by the text of the statutes, and
by the legislative history where available.
An abutting owner has and possesses access to an
existing highway. That right of access is a property
right which cannot be taken from him without
payment by the public ofjust compensation. In order
2 A law review article cited with approval by the Court elaborates on this
function: "Usually the landowner dedicated a portion of his land for the
roadway and helped build it either through direct labor or assessments. Under
such a state of affairs, each of the abutting landowners was considered to have
the right of access to this road which was, after all, built to give him access."
Freeways and the Rights ofAbutting Owners,3 Stanford L Rev 298, 300
(1951). See also Duhaime,Limiting Access to Highways, 33 Or L Rev 16, 34
(1953)(describing the origin of abutting rights in similar terms, although
proposing a rule different from the one recognized by this Court in Busk).

15
to produce an access controlled highway by
converting an existing highway into a throughway, the
abutting owners [sic] right of access must be acquired.
If it cannot be acquired by agreement, then it may be
acquired by the exercise of the right of eminent
domain. But in either event,just compensation must
be paid to the abutting owner.
Letter from J.M. Devers, Chief Counsel, Oregon State Highway Commission
regarding HB 619(April 25, 1951)(later codified as ORS 374.405).
As the statutes and legislative history discussed above suggest, ODOT
itself has historically recognized that abutting rights must be acquired by
purchase or condemnation. The taking of access was routinely described in
condemnation complaints and judgments, and in deeds. Unless all access was
acquired, such descriptions would also reserve access at specified locations. See
ORS 374.410. Examples of such deeds were submitted in response to ODOT's
motion in limine(TCF 55 at Ex 4-5; ER 33, 35). See also Oregon Uniform
Civil Jury Instruction No. 60.01 ("Talcitlg of Land and Access"). Defining
abutting rights as a property interest in this sense has consequences for the
scope of regulation permissible under the police power. If they are truly an
appurtenant easement, then their extinguishment should not be considered a
regulatory taking, but rather the acquisition of a property interest for which
compensation is due even when the restriction does not impair all
economically viable use ofthe property.
In Douglas County v. B~zggs, 286 Or 151, 593 P2d 1115 (1979), this
Court found in ORS 374.420 a legislative intention to require compensation
when the creation of a throughway resulted in the extinguishment of all abutting
rights of access to county road, even though the restriction was for road use and

16
secondary access remained. Despite the nearly identical language of the two
statutes(ORS 374.420 was based on ORS 374.035), the Armstrong concurrence
distinguishes this Court's decision in B~^iggs, citing the lack of legislative
history with respect to the earlier statute.
This distinction is critical to the analysis of the concurring opinions,
which rely heavily on Sch~unk and other cases involving city streets,-where
ORS Chapter 374 was not at issue. Differences in statutory treatment aside,
Schrunk was a declaratory judgement action in which the landowner was
seeking relief without, as this Court noted, alleging any particular damage. See
208 Or at 68, 71, and 73. And, assuming landowners abutting city streets were
on a similar common law footing with those abutting roads and highways,3 it is
not clear that an appurtenant easement would attach to each named street if the
property retained direct access around the corner of the same block.
B.

Alderwoods' Right to Compensation Was Not Affected by ODOT's

Purported Administrative Closure of Physical Access.
As the dissent observes, to the extent the concurring opinions rely upon

ODOT's letter concerning the anticipated administrative closure of access, they

focus on an issue that the trial court did not reach, and ODOT did not raise on
appeal. The concurring opinions fail to appreciate the distinction between the
acquisition of defendant's underlying property interests in condemnation and
the potential administrative regulation of their use.

3 See Burk, 200 Or at 231 and related commentary in footnote 1 above.

17
In the present case, defendant had no administrative remedies to exhaust,
as ODOT was talzing all abutting rights of access in its condemnation
complaint. Under ODOT's own regulations and statutory authority, there was
nothing left to regulate: despite the contrary suggestion in its October 16, 2008
letter, the agency could not grant Alderwoods a permit for an approach road.
See ORS 374.310(1)("the department may not issue a permit for the
construction of any approach road at a location where no rights of access exist
between the highway and the abutting real property").
Indeed, unless ODOT had amended its complaint to abandon the taking
of access (see ORS 35.335), it would have been futile to seek a permit or to
establish in an agency administrative proceeding that the property's access
existed prior to 1949, as the underlying property right was already being
condemned. After condemnation, a landowner must convince ODOT to sell it a
new "Grant of Access." See OAR 734-051-0305 (requiring payment of
appraised value to purchase the underlying property right from the agency).
Under Oregon law, the property taken in a condemnation action is
defined in the complaint, and valued as ofthe date of taking, which is either the
date of the complaint or upon the government taking possession, whichever
occurs first. See Dept. of Trans. v. Lundberg; 312 Or 568, 574, n.6, 825 P2d
641, ce~^t den, 506 US 975 (1992). Accordingly, any subsequent administrative
action by ODOT would be irrelevant to the jury's determination of value and
inadmissible in the condemnation action. See also Boise Cascade Copp. v.
Board ofForest~y, 325 Or 185, 935 P2d 411 (1997)(rejecting exclusive
administrative jurisdiction where plaintiff had presented an inverse

is
condemnation claim);former ORS 374.310(3)(ODOT's permit authority may
not be exercised to deny abutting properties access reasonably adequate for uses
allowed under a local comprehensive plan).
C.

Just Compensation and the Reasonableness and Adequacy of Any

Remaining Access Are Questions of Fact for the Jury.
Thirty-five years ago, the Court of Appeals held that when restrictions on

access are imposed, whether adequate access remains available is a question of

fact to be determined by a jury in light of the highest and best use of the
affected property. Douglas County v. Briggs, 34 Or App 409, 414, 578 P2d
1261 (1978). On review, this Court took the same view. See 286 Or at 157.
The Court of Appeals decision in this case erroneously deprives
Alderwoods of its right to have a jury determine just compensation for the
taking of its abutting access.
CONCLUSION
The Court should allow the petition for review.
Respectfully submitted,
LANE POWELL PC

Charles F. Hudson
Attorneys for Petitioner on Review
Alderwoods (Oregon), Inc.

APP 19
590

O~OT v. Alderwoods(Oregon), Inc.

defendant .
by a voluntary or forced conveyance. Therefore,
eways
was not owed compensation from the state for its driv
under those statutes.z
The dissent finally contends that the state in this
property
case has pleaded that it must acquire defendant's
k with payinterests in the driveways so that'it is naw stuc such prapno
ing fax that acquisition, even if defendant has
nt to acquire
inte
s
any
laim
erty interests and the state disc
llheim, J., disthose interests. See 265 Or App at fiU2 (Wo seek to acquire
d,
senting)("Tha state cannot, on the one han
ough emi~
an abutting,landowner's right of direct access thr
there is no right
vent domain and, on the. other,.claim that
en property right."
to establish just compensation for the tak
(Emphasis .n original.)).
that it
As noted, the state pleaded in its.complaint if acny,
of access,
intended to acquire "[a]11 abutter's rights Pacific Highway
between jdefendant's .property] and, the
t that allegation to
West." (Emphasis' added.) I interpre
e is any right
seek an.initial detearmination of whether ther
ted right of access
of access at that location. If such a loca
it by condemnation.
exists; then the state sought to acquire
~t3:'.to .be acc~.uir~ad~- and
~-tea -e~3'.I~ ~~ ~eea_.,$e~-, .
construction easefar which compensation is owed, is the
wards "if any" in
ment. That ie the plain meaning of the
only if defendant
the complaintthat a taking is intended her, that is the
has a right of access along the frontage. Furt pretrial offers
its
meaning the state gave to the complaint in
and it is,implicne,
limi
of compensation and in its motionin
complaint when
itly, the meaning the trial court gave to the
it granted the motion in limine.
s right from the state for its
Even if defendant did obtain a discrete acces
or implicit permission from
ss
expre
y
by
driveways, anq access rights exist solel
at ORS 374,8pU to 974.360 and rule
the state under.the atatutory.regime setout
OAR chapter 734,division Gi.The
adopted by the Department ofTransportation,
highway i~ the administrative
state
a
to
road
ach
remedy for cloenre of an appro
out in pRS 873.318. Sucb a permit or
claim process for compenaatian that is set
rty" that can be ptakeu"for ~juat comallawarice is not,in my views private prope
ss Copper Corp, v. State ofOregon,
Kinro
See
18.
on
secti
I,
peneation"under Article
to on recons,163 Or App 357,9$8
160 Or App 515,619,524-25,981 P2d 833,Gcdh'dal of wastewater discharge permit
(deni
999)
71(1
Or
P2d 40011999),rev den,3S0
mining claim; "an owner cannot
is not an inverse condemnation of unpatentedthat it did not ever have").
right
rty
maintain an action for loss of a prope

AFP 1
September'17, 2014

572

No. 426

IN THE COURT OF APPEALS OF THE

STATE OF OREGON
STATE OF OREGON,
acting by and through its
Department of Transportation,
Plaintiff-Respondent,
U.

ALDERWOODS(OREGON),INC.,
an Oregon corporation,
successor by merger with
Young's Funeral Home, Inc.,
an Oregon corporation,
Defendant-Appellant,
dnd
BANK OF AMERICA,N..A.,
a national association,
asadministrative agent,
Defendant.
Washington County Circuit Court
C4854~9CV; A146317
~ .:~r

Thomas W. Kahl, Judge.

en
Argued and submitted July 30, 2U7,2; resubmitted.
Banc March 12, 2014.
Charles F. Hudson argued the cause for appellant. With
him on the briefs was Lane Powell PC.
Erin , C. Lagesen, Assistant Attarney~ Gen~ra~, argued
John
the cause for respondent. With her on the brief were
itor
R. Kroger, Attoxney General, and Anna 'M. Joyce, Solic
General.
,
$e#'ore Haselton, ChiefJudge, and Armstrong, Wollheim
Ortega, Sercombe,.Duncan, Nakamoto, Egan, DeVore,
Tookey, and.Garrett, Judge, and Schuman, Ssnior Judge.

AFP 2
Cite as 2fi5 Or App 572(2014)
PER CURIAM
Affirmed by equally divided court.
Armstrong, J., concurring.
Sercombe, J., concurring.
Wollheim J., dissenting.

573

APP 3
574

ODOT v. Alderwoods(Oregon), Inc.

ARMSTRONG,J., concurring.
As part of a project to improve SW Facific Highway
nt of
(Highway 99W) in Tigard, the Oregon Aepartme atian
Transportation(ODOT or the state)brought a condernn
d
action against defendant to acquire interests in land awne
gs,
by defendant that abuts Highway 99W. Among other thin do
walk
side
the
of
on
the project involved the reconstructi
driveHighway 99~V and the elimination of curb cuts andndant's
ways that had allowed vehicular access from defe
ted
property to the highway. Before trial, the trial court gran
dimithe state's motion in limine to exclude evidence of the loss
its
of
lt
n~tion in the value of defendant's land as a resu
entered a
of access to Highway 99W. The court thereafter ation of
pens
general judgrz~.ent awarding defendantjust carn gns error
$11,792. Defendant appeals the judgment and assi
lude
I
to the order granting the state's motion in lirnine. conc
on.
that the trial court did not err in granting the moti
Defendant owns a rectangular parcel of propez-~y
near the
whose southern boundary abuts Highway 99Win Tigard.
interchange of Highway'99W and 'Highway 217 ~ ,defenBefa~e the state undertook to improve Highway 99W
Highway
dant's property had direct vehicular access to has ndi=
99Wthrough two c~rive~uvays. Tfie property alsoue, which
rect access to Highway,99W from Warner Aven intersects
abuts the western boundary a the property and
is
Highway 99W. To orient the reader, a map ofthe property
.
included as.an appendix to the opinions in this case
As noted, ODOT unde~rtaak to improve the por-.
~ing
Lion of Highway 99W that includes the highway abu~
action
defendant's pxaperty. _The state filed a condemnation poatem
ire
against defendant in September 2008 to acqu
"far
racy easement across a portion'of defendant's pxoperty
ire
acqu
to
"
and
the purpose of a CcanstructionJ work area
"[a]~l abutter's rights of access, many,"to Highway 99W. One
val
month later, ODOT sent defendant a notice of the remo
,
99W
of defendant's unpermitted approaches. to. Highway
which advised defendant that OI770T had no record of a perrmit for defendant's driveways and that defendant's unpes-eway
mitted approaches to the highway--vix., its driv walk
the
side
of
would be eliminated with the reconstruction

.~.

Cite as 265 Or App 572(2Q14)

575

on Highway 99W. The notice also advised defendant that

it could submit to ODC?T an application for a permit for an
approach to Highway 99W from defendant's property or
could provide proof that the existing approaches had been
established before 1949.1
Significantly, howevar, ODOT rules establish minimum safety standards for.an approach to a state highway
such as Highway 99VV, and those standards require an
approach to be located at least 750feetfrom a highway intsrchange. See OAR 734-0510125(2008)(Table 5). Under that
standard,. no approach to Highway 99W would be permitted
from defendant's prapexty, because the entire length of the
property that abuts Highway 99W is leis than 750 feet from
the interchange o:f Highway 99W and Haighway 217. As it
is, defendant did not submit an application for an approach
from its property to Highway 99Wy and, accordingly, the
state constructed the sidewalk abutting th.e property with
out curb cuts or driveways that would allow vehicular access
from the property to the highway.
The state subsequently filed a motion in limine in
the condemnation action that sought to exclude any . evidence ofthe diminished value
..,of defendant's property due,to
its Toga of access to ~ ghway 99W.Thy state argued that the
denial of access resulting from the elimination of tk~e curb
cuts and driveways constituted a denial ofaccess to promote
the effdent and safe use of the highway, that is, a.regulatory restriction on access to the highway to promote its use
as a highway and, consequently, that the den.~ial of access.
as a result of those restrictions did not constitute a taking
of the access far which compensation would be due.under
Article I, section 18, of the Oregon Constitution. In the
state's view, because the regulatory restriction on access did
nat constitute a taking and because the property has access
to Warner Avenue, any reduction in the value of defendant's
property as a xesult ofits loss of access to Highway 99W.was
not comp~nsable. Hence,it sought to exclude evidence ofthe
'The reference to 1948 reflects that ODOT had established its permitsystem
far approaches to state highways in 1949, ao approaches established before'1949
would not have required a permit. Cf. (7AR ?54-051-0040(26)(2008)(defining
"Grandfathered approach" under ODOT permit system as a legally constructed
approach that existed before 1949).

~...

604

ODOT v. Alderwoods (Oregon), Inc.

owner ax
"fox the condemnation of such interests as such
any and
g
udin
owners may have in said real property, inclacquired is for,
all right of access if the real property to be
compensaright of way purposes, and for determiningifthe
any there be,
tion to be paid therefor, and the damages,
for the taking thereof."
marks omitted).
Burk, 200 Or at 227 (internal quotation
le when the
After concluding that the statute is applicab
.a nonacy
inta
hwa
hig
state seeks to converi~ a conventional
ement ofaccess,the
ceashighway by condemning only an eas
court stated:
blished, there is
"When a conventional highway is esta
ofaccess'in, and
attached to the abutting land an easementerty
right which
to, the highway. Such easement is a prop ."
cannot be extinguished without compensation
Id. at 228.
of .8urk,
The state rejects the precedential value
that, np
hes
blis
esta
asserting that .more recent case law
e's acquis~itiori of
compensation gig due as a result of the stat p~opexty land-.
leaves
a right of access, unless the taking
ss point previously
locked or results in the closure of an acce ds,in the state's
r wor
reserved b~ deed., as in Hanson.In othe
highway is simply
view, an acquisition of access to a public
ic highways, and
a way by which the state regulates publ results in a dotal
if it
results in a coxnpensable taking:.only
of
the property.s ,
use
le
viab
loe~ ofeconomic value and
owledges that diacu$aion in
Iri his concurrence, Judge Armstrong ackn
says the court subsequsntlq disavowed in
Burk,but describes it ae dicta which he 286 Or 151, 156-67,593 P2d 1116(1979).
its opinipn in Douglas County v, Briggs, rring). Although 1 agree with Judge
266 Or App at 581.~(Armatrong, d., concu OCLA sections 100-16(when a state
Armstrong that the court's construction of nonaccess highway by condemning
a
seeks to convert a conventional highway into pay
compensation for the taking) in
mast
state
the
s,
only an eseement of acces
d choose to follow See State v.
worl
I
Burk was dicta, it was.pereuasive dictac thatrev den, 835 Or 380(2p14)(tbllowing
620,
Pad
Brewer, 260 Or App 607, 613,820
and contrary to Judge Armstrong's
persaaeive Supreme Court dicta). Further,
J., concurring) the dicta from Burk
g,
stron
(Axan
sugg8stion, 265 Or App at 682
itutional principles. Rather, the court's
~ou which I rely did not depend on const pretatipn of OCLA sections 100-16, the
digcuesion was in the context of its inter
h authorized the State Highway
predecessor statute to ORS 374.035t~), whiccondemnation an owner's right of
Department to bring an action to acquire byaxguznent, the court, in its eubaeaccess. And, contrsuy to Judge A.rno~strong's discussion in Burk: It did not even
quent opinion in Briggs,.did not disavow thation on whether Article I, section 18,
cit$ the case. The coe2rt merely took no posit

~'

Cite as 265 Or App 572(2014)

X77

damages for the loss of access to a road is the diminution in

the value of the land resulting from the lass of access.
However, it is well established in Oregon"that governmentax regulation ox modification of a road far road purposes that denies a landowner access to the road does not
give rise to a compensable taking ofthe owner's access right.
For example, the court held in Oregon Investment Co: v.
Schrunk,242 Or 63, 408 P2d $9.(1965), that Portland's decision to establish a 24-hour bus-loading zone that spanned
the entire length of a city block and, as a consequence, that
denied abuttinglandowners any accessfrom their pxoperty to
the affected street, did not constitute a taking.dfthe owners'
access to the street. The court acknowledged that the owners'
right of access to the street was a property right but concluded that the right was "subservient to the primary rights
ofthe public to the free use'of the streets for the purposes of
travel and incidental purposes."Id. at 69(citations omitted):
The.court went on to explain: ,
"It is apparent that the concern of the city in refusing
to allow a curb cut on SW Fourth Avenue and thereby barring the uae of the sidewalk on that street for the passage
of autonnobiles ~gaing into and leaving plaintiffs' propezty,
~~s wig .the pudic safely aud. convenience-vvx~h the
safety in a _heavily congested area ofpedestrians,including
Feraons boarding .and departing from buses, and the safe
.and orderly movememt of automobile trafific. *** It may be
that same depreciation in the value ofplaintiffs'propexty or
some lessening of profits from their parking business has
xesulted--thoughneither is alleged. But ifsa,it is darr~num
ubsque ir~juria. T1~ere was no `taking' of plaintiff' property
within the meaning of Arrticle I, section 18, of the Oregon
Constitution. As this court said in Brand v, Multnomah
County, [38 Or 79, 92,~ 60 P 39Q, affd on rehg, 62 P 209
{1900)x.***;
"`Acts done in the proper exercise of governmental powers, and not directly encroachi~ag upon private property,
though their consequences may impair its use, are universally held not to be a taking within the meaning of
the constitutional provision'"
242 Or a~ 71 (citation axnitted); see also Barrett et al.. v.
Union Bric~ge~ Ca., x1.'7 Or 220, 223-24, 243 P 93, rehg den,

APP 7
578

ODOT v. Alderwoods(Oregon), Inc.

et grade for
],J.7 Or - 566, 245 P 308 (1926)(change of stre

ss to the
bridge approach that denied property owner acce
t); Brand,
street was nat a compensable taking of access righ
38 Or at 95-99(same).
a
Notwithstanding those decisions holding that
ble takcomplete loss of access to a goad is not a campensalation or
ing of access when the loss is~ caused by the regu
.Supreme
modification of the road for road purposes,.the v. Burk
.
Court concluded in dictur~z in State Highway Com
the conversion
~t al., 200 Or 211, 265 P2d 783 (1954), that
highway, with
of a conventional highway to a limited-access
y by abutting
the concomitant loss of access' to the highwa
n the access
dem
landowners,requires the.government to con
denying the ownrights ofthe abutting landowners, because
compensable
ers access to the highway would constitute a was whether
taking.af their access right. The issue in Burk
first instance as
the Mate could canstruct a highway in the
required to pay
a limited-access highway and thereby.not be they never had.
abutting landowners fox a lass of access that
t
In concluding that the state could da that,the cour
s
goal
ty
safe
noted the important public transportation and
achieved by limiting access to a'highway:
tion of the
"In direct contrast with the land-service func tion of the
func
and
ose
conventional highway is the purp
estion of popnon-access freeway or thrnughway. The cong
d automorapi
of
ulation in the cities, the amazing increase
dent to the use
bile transportation,the delays and pexxls inci s highways
of the conventional two-way unrestricted-acces n-access
ofno
have rendered imperative tie establishment i.ntere~t of
.the
in
ways
free
or limited-access highways ox
the public convenience and necessity.
inadequate
"It is reliably reported that.travel upon our'
-and-a
lion
amil
hs,
highways results in 40 thousand deat
z~s a
on
dolla
billi
half i.n4juries, and property damage of 2
ly'
rial
been mate
year, and that these staggering lasses have
been
have
reduced wherever modern non,-access highways
established."

Id. at ~31(citation omitted).

Although the eowrt recognised the public trans-,
highways
portation and safety benefits of limited-access

_'
'

Cite as 265 Or App 572 {2014)

579

it nonetheless said that "it is almost universally held that

[the vested right of access of abutting landowners to a conventional highway) can be divested only by condemnation
of the easement appurtenant to the abutting property." Id.
In other words, although it would serve important highway
puxposes to convert a conventional highway to a limitedor non-access highway by denying abutting landowners
access to the highway, the denial of access would. nonetheless constitute a campensable taking of the owners.' access
rights.
Tk~e implicit premise of the .8urk dictccm appears
to be ghat the conversion. of a conventional highway to a
limited-access. highway is too great a change in the. use of
the highway to be included among the changes to which the
access rights of abutting landowners can be understood to
be subservient. In other words,landowners cam .expect their
access to a conventional.highway to be subject to impaixxnent
a~ a xesult of governmental decisions to regulate or modify
the highway to betiter serve the public use of the highway
as a highway,including impaairment to the paint of a denial
of all access to the highway,see, e.g., Schrunk,'242 Or at 71,
so long as the impairment daes not result from a decision to
i~e~- er ~e~z-aeeess
.a..~Q~e~.~iez~a~..~s~~Y..~e...a
,c.~a~
highway and thereby to eliminate "the land-service function" othe highway.
The distinction implicit in the Burk dictum cannot .
withstand examination. It simply does not make sense to
distinguish between a change to a highway for highway
purposes that denies one abutting landowner all access to
the. highwaywhich is not considered to constitute,a tak
ing o~the owner's access rights-and a change to a highway
for highway purposes that denies till abutting landowners
access to the highwaywhich the Burk dictum concludes
would constitute a taking of the owners' access rights: Both
changes should be t7reated the same far puxposes o:fArticle Y,
section 18.
In fact, the .8urk dictum cannot be squared with
tk~e analysis that appli.ee to governmental regulations that
.affect land, Under that analysis, aregulations affecting land
do not constitute a taking of the land or any interest.in it

..

580

ODOT v. Alderwoods.(Oregon), Inc.

owner with nn econozn.iunless the regulations leave the Coast Range .Conifers v.
,
callyviable use ofthe land. See, e.g. 1, 117 Pad 990(2005).
1.46-5
Board of Forestry, 339 Or 136,
ble use of land conceivably
via
lly
The loss of all. economica
n of a conventional highway
could occur from the conversio
hway if the conversion left
to a limited- ox non access hig
the owner's land. However,
a landowner with no access to
sion would not constitute a
absent' such an e~'fect, a conver
the affected owners' land
taking even though the value of
a result of the owners'loss
was. significantly diminished as

of access to the highway.z

affirm a trial
We relied on the dictum in .$urk ,to34 Or App 409,
v. Briggs
court decision in Douglas County er grounds, 286 Ox 151,
578 P2d 1261 (1978), a~`"d on oth that a count's decision
d
593 P2d 111.5 {1979), that had.hel road to a limited access
nty
cou
to convert a conventional
ng. landowners access to the
road--thereby denying abutti
le taking of the owners'
road--constituted a campensab
of access had reduced the
access rights because the loss ognized that a government
value of the owners'land. We rec road by an abutting landcan.qualify or restrict access to aety, convenience and welowner "to protect the public saf
-Get~~',~ vision .i-~ ~S~iruzr.~k
f~~~" az~ we citec~t~xe--6~~~rem~t "[s]uch restrictions do not
as,support for the principle tha
adequate means of access
constitute a taking so long as anng property owner." Id. at
remains available to the abutti
ggs can be reconciled with
4X4. However, oux decision in Brz
the Burk dictum.
Schrunk only through reliance on
ed on
his dissent that the Burk dictum is bas s in
rest
Judge WoUheun contends in
inte
and
land
to the state's acquisition of
ng). That
the Oregon statutes that apply
~pp at600 m 6(Wollheim,J., dissenti
Or.
.
268
oses
land for highway purp
that
is not correct. Tha dictum asserts
land(the vested xight ofaccess ofabuttingion of
that
held
y
saA
aat
dem
"it ie almost univer
y] can be divested only by eon
ownere to a converitiona.l highwa abetting property."
the
to
nt
the easement appurtena
e applied
statement of a constitutional principl
Burk, 200 Or at 231. That is a about the proper interpretation of an Oregon
by other courts, not a statementapplied Oregon condemnation statutes; it did so
statute. Ta the extent that Burk' ofArticle I,section 18.As for Judge Wollheim'~
g
based on the court's understandin nce on the proposition that the Supreme Court
urre
conc
nny
in
, J., disassertion thaC I rely
Burk, 265 Or,A,pp at 600 n 6(Wollheim
disavowed in Briggs its dictum in that the Supreme Court hoe disavowed the
senting), I da not assert nor believe (Armstrong, J., concurring). .
-82
Burk c~ctum. See 266 Or App'at 578

APP 10
Cite as 265 Or App 572(2014)

5$1

.t~.s noted earlier, the landowners in Schrunk had

lost all access to Qne street but still had access to their
propearty from adjoining streets. Schrunk, 242 Or at 71. The
Supreme Court recognized that the loss of access to the one
street may have reduced the value of the owners'land, but
that reduction in value did nat constitute a taking under
Article Y, section 18, because the restriction an access that
had caused the reduction served the public use ofthe road as
a road. Id. In Briggs, the landowners had last access to the.
road that had been converted to a limited~access road, but
they still had access to an adjoining road. Nonetheless, we
held that the loss of access to the one road canatituted a tak
ing under Article I, section 18, because, although the land
could still- be used fox the residential. and farming purposes
for which it histarieally had been used, the land could not
be developed for commercial purposes, and, hence, its value
had been reduced by the loss of access. Briggs, 34 Or App
at'414-15. In other word,.the loss of value due to the loss of
access was a campensable taking of the access in Briggs but
notin Schrunk even though the denial ofaccess in both cases .
served the public use of'the respective roads as roads.Hence,
our decision in Briggs necessarily depended on the Burk dictum as support for the principle that a denial of access to an
~kruttingrc~ad-~ccm~tit~a~es..a _comgensa~-t~ing-o~th~e a~cccess
if the denial is imposed to convert a portion of an e~sting
road to alimited-access road. See also id. at 413(Burk cited
as source for principle that_ common-law right ofaccess"may
not be extinguished withoutjust compensation").
The Supreme Court allowed review of our decision
in Briggs. It ultimately affirmed our decision, but it did sa
based on its construction of the statute under which the
county bad .acted.in Brigs to conveart the county road to
a limited-access road, ORS 374.420, which the legaislature
had adopted in 1965. Briggs, 286 Or. at .154-57. The court's
construction of the statute depended, in turn, on its under~tanding of the legislative .history of~ the statute. That history convinced the court that the legislature had enacted
ORS 374.420 to give.counties the authority to convert existing roads to limited-access roads but had conditioned that
authority on a requirement that counties had,to pay abuttinglandowners for their loss of access. Id.

APP 11
582

OD~T v. Alderwoods (Oregon), Inc.

is ofits
Because the court resolved Briggs an the bas
k
understanding of ORS 374.420, the court too
Article I, sec"no position one way or the other whether
dates payment
tian 18, of the Oregon Constitution man
n like the present.
for loss of rights of access in a situatio
access, we believe
of
t
.Despite defendants'common law righ
in situations in
bt
the matter to be one of considerable dou
poses [that] have to
which the access is terminated for pur
public road"
do with the use ofthe county road as a

286 Or at 156-57(footnote omitted).

the cansti,Although the Supreme Court did not reach
reaolut~on of the issue i~
tu~ional issue in Briggs, the correct
cumstances presented
tY~at a denial ofaccess t4 a road in the cir tting landowners to
abu
in Briggs--viz., a denial of access for
t and safe use of the
an existing road to promote the efficiene$s ,rights that would
acc
.road--ia not a faking of the owners'
ers under Article I,
require cvmpensation.to be paid to the own er words, S'chrunk,
oth
section 18, for their lass of access. In constitutional princirect
Barrett, and Brand establish the cai~
in Burk.
ple in those circumstances, not the dictum
defendant's
Against that background, I .turn to ce on the
of evi
... den
cl~all~nge_..to k~a.~e trial ~Q~~'.~ exclusion to its
loss of access
diminished value of de.~endant's land due that the measure
ds
to Highway 99W. Defendant conten
its right of access to
of
of damages for the .condemnation
ue of its.land due to its
Highway 99W is. the diminished val
trial court erred in
loss ofacce$~ to Highway 99W.Hence,the ages. The premexcluding evidence on .that measure of damnt i~ that, butfor
ume
ise that necessarily underlies that arg y 99W,the property
hwa
the condemnation oftlt,~ access to Hig that were true--that
If
.
99W
y
would have access to Highwa
Highway 99W but
is, if the property would have access to the diminu~.on in
then
for the candem~nation of access to it-s o#' access would be
los
the value of the property dt~e,to its
could recover far the
the measure ofdamages that defendant hway 99W.
condemnation ofi~ right ~f access to Hig
y decision
However, as a result of ODOT's regulator y 99W,
hwa
Hig
to
to eliminate the curb cuts and driveways 99W for which
ghway
which resulted in a lose of access tp H3.
k, 2~2 Or at 71,
compensation is not av~ed, see, e.g., Schrun

CERTIFICATE OF FILING AND SERVICE

I hereby certify that I filed the foregoing Corrected Petition for Review of
Alderwoods (Oregon), Inc. by causing it to be electronically filed with the
Appellate Court Administrator on November 21, 2014, through the appellate
eFiling system.
I further certify that I served the foregoing document by causing by
causing two true copies thereof to be mailed by first-class mail on
November 21, 2014, as follows:
Denise G. Fjordbeck
Attorney in Charge .
Civil/Administrative Appeals
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096

~~'~~ ~
Charles F. Hudson
Of Attorneys for Petitioner on Review

APP 13
584

ODOT v. Alderwoods(Oregon), Inc.

join in
Ortega, Duncan, DeVore, and Garrett, JJ.,
this concurrence.
SERCOMBE;J., concurring.
ther defenThe central issue in this appeal is whe interest in
perty
dant Alderwooda (Qxegon), Inc., had a pro t the state could
tha
V
specific, direct access to Highway 99V
t it did not; defenacquixe by eminent domain. T conclude tha
to use its actual or
dant never had a.real praperty intexeat along its highway
any other specific, substitute driveways
perly" to acquire
firontage. Thus, theme was no "private pro
not err in excludby eminent domain,and the trial court did ng.l
~aka
ing damage evidence for the purported
that defenJudge Axm~ttrong's concurrence concludes in and to
ess
ht of acc
dant did have a located common-law rige in eminent domain,
uir
acq
the highway that the state could
by administrative
but that this right of access was lost veways to highway
actions of the state that closed the dri
rong, J., concurring).
traffic. 265 4x App at 5-$2-88 (Armst that, by the time of
The concurrence ultimately determines
no private property
the condemnation trial, defendant had
a~~s valuation
es~-~-vv~3z-accesata-acguir~,.and..~ha~
aterial.
evidence was properly excluded as imm
have such
The dissent surmises that defendant did
the state pleaded that
a property interest (~~rgely because
state statutes pur
it did, in its complaint and because two the property ~intert
portedly describe such an interest), tha
that defendant's
and
ce,
sten
estwas not regulated out of ~xxi
calculation of just
valuation evidence was relevant to the
of that interest. 265
compensation for the .forced purchase
am
ver~ there ig uo legislative history of which I
that
420
374.
ORS
of
t
tmen
enac
tha
nd
aware comparable to the history behi nded to require the state to pay landinte
establishes that the 19471egielaturerd
whether Article I, section 18, requires
ownere for access rights without rega Co
tie state to pay for thorn.
appeal was the formal exercise of
~ The eminent domain proceeding on
r Article I, section 18, of the Oregon
the state's condemnation authority unde property ehail not be taken for public
Constitution, which provides that"~p]rivate
The Fifth Amendment to the United States
use ***withoutjust compensation."irement. We have interpreted both takings
Constitution imposes the same requ
clauses to have the same reach.
ACG888 t0 8 BLBt@ ~31gi1WAy. Hawe

APP 14
Cite as 265 Or App 572(2014)

585

Or App at 60I-02, 610(Wallheim, J., dissenting). I write to

distinguish my analysis of tha affected property intexest
from that of the concurz~ence, but to join with its ultimate
conclusion that the valuation evidence was immaterial.
Briefly recounting the procedural histpry of the
case, the state filed a complaint in eminent domain, seeking to acquire a temporary construction easement on prop,
erty owned, by defendant, as well as "[a111 abutter's rights
of access, if any, between [defendant's property] and the
Pacific Highway West IHighway 99W]." At the time that the
complaint was filed, defendant had two driveways at the
frontage of the property that allowed access to the highway.
The property was also connected tq the highway by Waarner
Avenue, a street that runs along one side' of the property
and inte~raects with the Highway. That public approack~ to
the highway is not located "between [defendant's property].
and the Pacific Highway West [~iighway 99W]," so the state
did not seek to acquire any access right of defendant to the
highway through the public street in the eminent domain
proceeding. Shortly aflter the complaint was filed, the state'
closed the driveways along the front of the property by constructing acurbed sidewalk at those locations and requiring
Y~~r~ ~~ ~~di~io~a~
d~fe~a:nt t~ ai~tain a g~rnri~t ~ sny
private approaches to the highway.
$afore the condemnation trial, the state filed, a
motion in limine to preclude the introduction of evidence
of any loss of value of defendant's property caused by the
driveway closures at trial. I~ argued that defendant had
no private property interest---that is, no specific "rights of
access" in the driveways or otherwise along the frontage-for the state to acquire under Article I, section 18, of the
Oregon Constitution, The state contended that, because the
complaint sought ~o obtain only existing access rig~its along
the frontage, and, none specifically existed, no compen~abl~
taking resulted from the closure of the driveways. Thus,
according to the state, any evidence of the loss of. value of
defendant's property from 'that closure was immaterial.
Defendant, on the other hand, asserted that, by the complaint, the state sought to ~ acquire specific access rights at
the location ofthe driveways and that the acquisition of that

APP 15

586

ODOT v.1~.lderwoods(Oregon), Inc.

value of
private property by the state. would diminish the eed with
defendant's remaining property. The trial court agzthe state and granted the motion in limine.
We start with a pxaposition to which all agree: Ast to cpm
a matter of eminent domain law, there is na righ abutting
an
pensation for a loss ox restriction of access to
ly eliminated
street i~ access to the property'is not campiete
g condemned.
by the'project far which other property is bein
App 138,68$
Thus,in City ofSalem v. Merritt Truax, 70 Or
ect, the city
P2d 120 0.984), as part of astreet-widening proj
ice staserv
of
a
condemned a narrow strip -along one edge
s. We upheld
tion property, closing one of its three driveway
terclaim for
'
coun
the dismissal ofthe service station owners
reasoning that
inverse condemnation o the street access,
mon law
"[a~n owner of land abutt~in.g a street has a com

. However,
right to access to his property from the road
to their premthe rights of abutting proprietors to access free use of the
ises are subservient to the public's right to 's exercise o~
state
streets. That right is protected by the ss xights that is
acce
ite police power..An interference with
a campensable
an egerci~e of the city's police power is not
taking.
to prpvide
"It i~ well settled that changing a public road exercise
te
tima
fox public safety amd convenience is a legi that the cloof a city's police power. Thus, we conclude ensable taksure of defendants' driveway was not a compin driveways ...
ing. Defendants point out that the change ion and has
stat
hoe made i~ less convenient to enter the has also made
ure
clos
The
.
resulted in a decline in business
it must now
it harder fox defendants to get fuel, because
no longer
can
ks
be specially delivered because taa~ker truc
absque
num
dam
pull into the statiom. Those makers are
injuria and not campensable."

Id. at 140-41(citatigns omitted); see also

Argo Investment v.

674 P2d 620

Dept. of ~'ransportdtion, 66 4r App 43U, 432, r property
(1984)(."Plaintiffs continue to have access to thei fact that
for the principal purpose for which it is used. The incon**may be
traffic has to use a more circuitous route *
canstiaffecting the use, but it does not rise to the
venient,
."}.
tutional magnitude requiring compensation

APP 16
Cite as 265 Or App 572(214)

587

The common law of Oregan _ on access rights to

highways was summarized in a similar way in William E.
Duhaime,Limiting Access to Highways, 33 Or L Rev 16, 34
{1953), as follows: .
"It is submitted that, in view of the cases above discussed,
the common law of Oregon is as follows:
"(a) A total deprivation of all access to a piece of
property is a `takuig' within the meaning of the Oregon
Canstitutian for which compensation must be paid.
"(b) Where soma means ofingress and egress remains,
although nod the most convenient one, access to a particular street ax highway may be regulated or prohibited w.ithautliability to the abutting owner far compensation,solong
as the regulation or prohibition is to promote the public use
of the highway for highway purposes..Here, the injury auffered by the abutting owner ia.cansequential to ~ lawful use
of the highway,and is damnum absque irkjuria. No distinction should be' made between a tangible improvement ta.
the Iughway (thongs in grade,.etc.) and an intangible one
{control of access), so long as some other means of access
is available, the improvement is lawful, the improvement
does root physically encroach upon the abutting property,
and-t~xe-impr~rv~:mput isfar-highwaygwrp~+ss~~"

Put another way, the only property interest in

~tree~ access held by an abutter a~ common law is a general, unfixed, right to access the street. That is, a general
ri.glit of access to the street exists either dixeetly from'the;
frontage of the property along the street or,indirectly from
a private or public approach that borders the property.
Unless a government takes that entire interest=both
the direct and indirect access---no compensation is owed
under Article I, section 18. As the court noted iri ODOT v.
Hanson; 162 Or- App 38, 44, 98?P2d 538 (x.999), rev; den,
330 Or 252(2000):
"At common law, any property owner has ~ right of access
to public thoroughfares. State Highway Com. v. Burk et al.,
200 Or 211,228,265 P2d 788(1950. But the right ofaccess
is specific to no particular ~locat-ion and, thus, is subject to
regulation by the state without compensation as long as
same reasonable access remains available. Thus,the court

I`~''

5$8

ODOT v. Alderwoods(Qregon), Inc.

Schrunk,
was careful to hold in Oregon Investment Co. (v. orized
auth
e
was
stat
the
242 Or 63,408P2d 89(1965))that
tion `if adequate
to deny access to a property at, one loca
the other street
means of access remain to the owner at e, because the
or streets: [242 Or at ?3.~ That makes sens
accesa genercommon-law right entitles the owner only to
a result, when
ally, not access at a particular location. A,s
icular location,
the state regulates access merely at a part
right, because
there has been no taking.af the coxx~a..man-law
access rEmains avai.lable."

117 Or 220,.224,
See also Barrett et.al. v. Union Bridge Co.,
Or App- 623,
24'3 P 93(1926}.(same); Deupree v. ODOT, 173 ate property
to priv
629, 22 Pad 773(2441)("Where access even though that
d,
roa
lic
is retained thxough another .pub
of direct highway
access may be less satisfactory, the loss ?', 15]. Or App
v. ODO
access is not compensable."); Curran
~neraXly,any act
781,?84-85, 785 n 3,951 P2d 183(1997)("G y fur legitimate
highwa
by the state that affects the use of a
taking ofaccess rights
in
a
`hig~iway'puxposes does notresult
under Axticle Y, section
to the highway that is conapensable
abutting property
18,.even if that action interferes with the erty."); Gruner. v.
owner's access to the highwayfrom the prop 8X5(1989)(holdP2d
L.dn~ ~'.ou_nty, 96.Ur App 6941 697, 773 utting Iandowner'~
'
"ab
ing that regulatory restrictions on
sable when landright ofingress and egress" are not campen
to access property).
ownerhas adequate alternative means
sation is owed
As thane cases make clear, no compen
for the loss of the
to defendant und.Er Ax~icle I, section 18, has no particular
use of its driveways becau~ge defendant
se driveways to travel
"pzivatie property" right to use tho
e defendant retains
to and from the hig~Zway and, becaus e's action .does not
stat
access through Warner Avenue, the
to the highway.
es~
mcc
take defendant's general. right of
' canst~tuThe dissent does not disagree with that
that defendant has
tional analysis. Zt concludes, however,
veways unclsr ORS
a statutory property right to use the dri n of a highway to
sio
374:0350.), which regulates the conver
it is condemning a
a throughway, Z`he state concedes thatoughway conversion
construction ea~em+~nt as part of a thr
project. ORS X74.035(1) provides:

.~

Cite as 265 Ox App X72(2014)

58'9

"The Department ofTransportation may,in the name of

the state, acquire by agreement, donation or exercise'ofthe
power ofeminent domain,fee title to o~ any interest in any
real property, including easements of air, view, light and
access, which in the opinion orjudgment of the department
is deemed necessary for the construction oJ~any throughway,
the establishment ofany section ofan existing state road ar
highway as a throughway or the construction of a service
road. The department may accomplish such acquisition in
the same manner and by the same prncedure as real property xs acquired for state highway purposes, except that in
case the acquisition is by proceedings xn eminent domain
the resolution required under such procedure shall speoify, in addition to other provisions and requirements oflaw,
~h.at the real property is required and is being appropriated
for the purpose o~ establishing, constructing and maintaining athroughway."

(Emphases added.)
ORS 3?4.035(1) allows the department to exercise
the power.ofeminent domain in order to acquire "any interest in any real property" that is "necessary" to establish a
throughway (a highway with no access or di.apersed aec~ss
from interchanges ar public streets)or to convert an existing
highway ~o a tFiroughway. In order'to c~nver~ a highway to
a throughway, then, it is necessary to eliminate all access
rights of an abutter to the highwaybath the direct access
from the property frontage and indirect access from an adjacent connecting sheet. The authority to condemn that entire
property interest'does not imply, as suggested by the dis~
sent, that there is a "direct access right"---a particular and
discrete access easement for highway abutters--that is created by ORS 374.035(1).
That dame general right ofaccess, and not a specific
easement,is the "right of access"re~'erenced in ORS 374.405,
which provides that there are "[n]o rights in or to any state
highway, including what. is~ known as righ;~ of access" far
abutters to state highways constructed, relocated, ox reconstructedafter May 12;1951.In my view,neither QRS 374.035
(directly)nor 4RS 3?4.405(by implication)creates statutory
property- interests for particular access to state highways
that can only be dzvested from ~h.~ abutting property owner

APP 19
590

O~OT v. Alderwoods(Oregon), Inc.

defendant .
by a voluntary or forced conveyance. Therefore,
eways
was not owed compensation from the state for its driv
under those statutes.z
The dissent finally contends that the state in this
property
case has pleaded that it must acquire defendant's
k with payinterests in the driveways so that'it is naw stuc such prapno
ing fax that acquisition, even if defendant has
nt to acquire
inte
s
any
laim
erty interests and the state disc
llheim, J., disthose interests. See 265 Or App at fiU2 (Wo seek to acquire
d,
senting)("Tha state cannot, on the one han
ough emi~
an abutting,landowner's right of direct access thr
there is no right
vent domain and, on the. other,.claim that
en property right."
to establish just compensation for the tak
(Emphasis .n original.)).
that it
As noted, the state pleaded in its.complaint if acny,
of access,
intended to acquire "[a]11 abutter's rights Pacific Highway
between jdefendant's .property] and, the
t that allegation to
West." (Emphasis' added.) I interpre
e is any right
seek an.initial detearmination of whether ther
ted right of access
of access at that location. If such a loca
it by condemnation.
exists; then the state sought to acquire
~t3:'.to .be acc~.uir~ad~- and
~-tea -e~3'.I~ ~~ ~eea_.,$e~-, .
construction easefar which compensation is owed, is the
wards "if any" in
ment. That ie the plain meaning of the
only if defendant
the complaintthat a taking is intended her, that is the
has a right of access along the frontage. Furt pretrial offers
its
meaning the state gave to the complaint in
and it is,implicne,
limi
of compensation and in its motionin
complaint when
itly, the meaning the trial court gave to the
it granted the motion in limine.
s right from the state for its
Even if defendant did obtain a discrete acces
or implicit permission from
ss
expre
y
by
driveways, anq access rights exist solel
at ORS 374,8pU to 974.360 and rule
the state under.the atatutory.regime setout
OAR chapter 734,division Gi.The
adopted by the Department ofTransportation,
highway i~ the administrative
state
a
to
road
ach
remedy for cloenre of an appro
out in pRS 873.318. Sucb a permit or
claim process for compenaatian that is set
rty" that can be ptakeu"for ~juat comallawarice is not,in my views private prope
ss Copper Corp, v. State ofOregon,
Kinro
See
18.
on
secti
I,
peneation"under Article
to on recons,163 Or App 357,9$8
160 Or App 515,619,524-25,981 P2d 833,Gcdh'dal of wastewater discharge permit
(deni
999)
71(1
Or
P2d 40011999),rev den,3S0
mining claim; "an owner cannot
is not an inverse condemnation of unpatentedthat it did not ever have").
right
rty
maintain an action for loss of a prope

. ~~

Cite as 265 Ox App 572(2014)

591

In State Hzghway Com. v. Burk et' czl., 200 Or 211,

220,265 P2d 783(1954),the state filed a complaint seeking
to condemn one parcel of land needed for the construction
of a nonaccess highway, as well as all rights of access to the
new highway, "`if any there be,'" from other property nat
taken. The trial court determined that the condemnation of
land for highway construction did not create rights ofaccess
in abutting land.,Thus, no compensation was owed for loss
of any access rights. That determination was affirmed on
appeal. The pleading of an intent to take access rights "if
any there be" was sufficient to place before the trial court
the question of whether any .access right or propErty interest existed at all. The same is true here wheats the state
pleaded an intent to take access rights "if any."~ (emphasis

added.)
Thus, the filing ofa complaint did not lock the state
into having to pay for something that does not exist. Instead,
the pleading required the court to determine if defendant
has a property rigb~t in the driveways ox other specific passageways from its property to the .highway that must be
acquired by the state xn order to limit access to the highway.
If so, then the complaint pleads an intent to acquire that
e~3F -~te~es~ ,~a~.~a3x.,}~ ce~easa~ie~ er- t-~e- ~raperty. The state is not, hovtiever, obliged to purchase defendant'e driveway+ simply because it sought to,determine if a

compensable access right existed.

Tn sum, because defendant hoe nn .real property
interest in the particular driveways that it used to access
Highway 99W or other specific "rights of access" along the
pxop~rty's frontage with the highway, and because the state
did not propose to acquire defendant's general right ofaccess
that might exist at common law or undex state statutes,. the
only "private .property" that way taken by the state through
the complaint and under the judgment was the canstruction easement. Thus, the trial court did not err in refusing
'Even if the complaint actually.stated a.n intent to take speciSe and located
access rights along the franta.ge, the dissent does r at euplain why the state's
matiom should ~ot be treated as an abandonment of that claim. $ee ORCP 23 A
Qeave to amend complaint shall be ;freely given when justice so requiaces);
cf. OftCP 28 B'(allowing amendments to. pleadings to conform tv the evidence at
.
trial).

APP 21
592

ODOT v, Alderwoods (Oregon), Inc.

any diminution
to admit evidence of just carnpensation for
ion of the
in value of defendant's property after the eliminat
driveways. Its judgment should be affirmed.
WOLLHEIM,J., disaen~ing.
t
Thin is an eminent domain proceeding brough
tatign (ODOT or
by the Oregon Department o~ Transpor
s (Oregon), Inc.
the state) against defendant Alderwoad
granting of the
Defendant assigns error to the trial court's
at trial of the
ce
state's mptian in limine to .exclude eviden resulting from
diminution,in value of defendant's property right of direct
s
~~e condemnation of defendant's abutter'
y (Highway 99W).
access to and from SW Pacific ~-Iighwa
ive rationales
Z`he two concurring opinions present alternatrationales are
se
in support of the trial court's ruling. Tho
by the state on
d
wax
for
put
based on legal premises not
g
regulatory tak
nin
appeal. They also rely on case law.gover
overlook controlling
inga rather than eminent domain and
view,requires a reverSupreme Caurt~ precedent that,in my
dissent,and write
sal ofthe trial court's ruling.I accordinglycompel the concluto explain waxy the case law and statutes trial court eared
sion.that, in the pasture of this case, the s. Defendant ie
age
in excluding defendant's evidence of damit can, the amount
if
entitled to its .day in court to prove,
state condemning
the
of
lt
resu
of its damages, if any, as a
defendant's property.
ions, defer;.
.Pis described in the two concurring opin 99W and,
hway
dart's property has frontage along Hig
had direct access
until this condemnation -proceeding, also t of a pxojei~ to
par
to Highway 99W by two driveways. Aa the sidewalks on
ilt
improve Highway. 99W, ODOT rebu erty and eliminated
Highway 99W abutting the subject prop
the driveways.
days before
ORS 35.346 provides that, at leapt 40
, "the condemner
the filing of any action for condemnation party having an
or
shall make a written offer to the owner
rest, and to pay just
interest to purchase the pxoperty or inte h ORS 36.846,in
compensation therefor[.)" In compliance wit sate defendant
pen
June 2008, the state made an o~er to com
the reconstruction
by
ated
for a temporary easement necessit

APP 22
Cite as 265 Ox App 572(20].4)

593

of the sidewalks and for its acquisition of defendant's abutter's right ofdirect access to Highway 99W.In an "Acquisition
Summary Statement," the state offered "just compensation"

for conveyance of defe~dan~'s access rights:

"CONVEYANCE OF ACCE55 RIGI3T5
"For the true and actual consideration of $~,~,Q,,.4.4,
ALDERW40DS(OREGON),INC., an Oregon corporation by merger with YOUNG'S FUNERAL HOME,
INC., an Oregon corporation, Grantor, as the owner
of the property [described] does convey and relinquish
unto the STATE OF OREGON, by and through its
DEPARTMENT 4F TRANSPORTATION,Grantee, all
abutter's rights ofaccess between the real property hereinabove described and [Highway 99W]."

(Boldface in original.)
Defendant declined'the offer, and the stag, acting
through ODOT, initiated this eminent domain proceeding
to acquire defendant's abutter's right of c~ixeet access, a~
well as a temporary easement on defendant's property for
the purpose of a work area. In September 2008, the state
filed a complaint alleging that the acquisi~.on consisted of
"[a]ll abutter's rights of access, if any," and "Ca) temporary
easement across the property ***for the purpose of a work
area" The complaint prayed that "an assessment be made
by a jury empanelled in this action to determine the campen$ation to be paid for the acquisition herein sought to be
condemned and appropriated."

Before trial, in .September 2009, the state filed its

first motion in lim~ine, seeking to exclude any evidsnc~ of a
diminution in the value of the subject property as a result
of defendant's loss of its direct access to Highway 99W. The
state contended that suc,~i evidence was irrelevant, because
the eliminatiion of defendant's abutter's .right . of access
did not result in a compensable taking. Rather, the sate
asserted, in acquiring defendant's direct access to Hig~iwa~
99W,it was merely exercising its power to regulate access to
a public highway.
While Che litigation was pending,in October 2U08,
ODOT sent defendant notice of "Removal of U'npermitted

APP 23
594

ODOT v. Alderwoads(Oregon), Inc.

e
Approach" to Highway 99W, advising defendant that ther
that
and
s
eway
was no valid permit on record for its driv
of
the unpermitted approach would be removed as a part it
the sidewalk upgrade. The notice advised defendant that f
ide proo
could submit an application for an approach pr prov notice
that the, approach - was in existence before 1949. The but
ond,
specified the amount of time defendant had to resp
ce.
de#'endant did not make any response to that noti
~o
In a second motzan in litnine, the state sought
were related
exclude evidence of any issues that it asaexted t's. access,
to ODQT's administrative closure of defendan
including claims of damages.
on in
The t~r:ial cau~rt granted the. state's first moti
ndant was
limine.~ The parties then stipulated that defe the temfar
entitled to damages of$x.1,792, in compensation
that the
ed
agre
also
they
porary construction easement;
the tak
for
stipulated amount did not include compensation 99W. The
hway
ing of any abutter's right of access to Hig
defendant
trial court entered judgment far defendant, andting of the
gran
appeals, assigning as exror the trial court's
state's first motion in limine.2
ude
In ruling on the state's. motion in lzmine to excl
.
trial
the
,
erty
evidence ofthe loss in value of defendant's prop defendant's
of
court accepted the state's position that,in view ner Avenue,
War
o~
way
indirect access to Highway 99W by
ble tak
the loss of direct access did not result in a compensa
In reviewing
ing; thus, evidence of damages was irrelevant. l question
lega
the correctness- of that ruling on appeal, the
ence to
is a narrowone: Is defendant entitled to put on evidisition,
acqu
's
establish a right to compensation for the state
ter's right
w
through eminent.domain, o~ its common-la abut
ons explained
of direct.access to Highway 99W? For the reas
ruling that
herein, I conclude that the trial court erred in
proceedain
dom
nent
defendant is not en~,tled in this `emi
g from the logs
ing to put on evidence of damages resultin
trial court's
of direct access. I would therefore reverse the
judgment and remand for further proceedings.
motion in limine.
1 The trial court never ruled on the state's second
ppeal in its answering
ODOT filed across-appeal but withdrew its cross-a
brief.

APP 24
Cite as 265 Or App 572(2014)

595

The Fifth Amendment to the United States Constitution provides that "[p]rivate property [shall not] be taken
for public use, without just campensatian." Similarly, under
Article I, section 18, of the Oregon Constitution, "[p)rivate
property shall not be taken for public use *** with.out just
compensation[1" Thus, when property is "taken" by the government,just compensation must be paid. Thornburg v. Port
ofPortland, 233 Or 178, 185, 376 P2d 100(1962).
Private property can be "taken" for public use
or benefit through the exercise of the power of eminent
domain--that is, the sovereign can exercise its inherent
power to take or authorize the taking ofany prpperty within
its jurisdiction for. a pubic use oar benefit. GTE .Northwest,
Inc. v. Public,Utility Commission, 3210x 4'58, 466,900 P2d
495(1995);Dept. of~'racns. v. Lundberg,312 Or 568,'671 n 1,
825 P2d 641, cert den, 506 US 97b (1992). Under Oregon
law, "just compensation" for a taking.is detexmined based
pn the fair market value ofthe property that is being.taken.
Fair market value, in turn, is "de~.ned as the amount of
money the property would bring if ~t were offeared for sale
by ane.who desired, but was not obliged, to sell and was
purahaeed by one who was willing, but not obliged, to buy."
Lundberg, 312 Or at 574. If the condemner and the property ownex are not able to agree on "just compensation,"
the issue is tried to the jury'or a couart. See ORS 35.305(2)
("Condemner and defendant may offer evidence ofjust compensatian, but neither party shall have the burden of proof
ofjust compensation"},
A taking can also occur through governmental reg
ulatian that has the effect of rendering one's piroperty valuelesa, Cope v. City of Cannon .beach, 317.Ox 339, 344, 865
P2d 1083 (1993), Aso known as a "regulatory .taking." As
the United Sates Supreme Court explained in Pennsylvania
Coal Co. v. Mahon,260 US 393, 415, 43 S Ct 158, 67 L Ed
322 (1922), "while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as
a taking." Under both. state and.federal law, a regulatory
taking will occur. when a landowner has beendeprived of
all substantial beneficial ar economically viable use of the
property. Homebuilders Assn, v. Tuccicztin. Hills Park & Rec.,
185 Or App 729, 734, 62 Pad 404 (2043). An ownar of real

APP 25
596

ODOT v. Alderwoods(Oregon), Inc.

ion claim against

property may bring an inverse condemnat property taken
a governmental entity to recover the value of
Boise Cascade
by the entity through a regulatory taking. See
187 n 1, 935 P2d
Corp. v. Board of Forestry, 325 Dr 185,
to understand
411(1997). This case presents an opportunity ng to eminent
end clarif~r the intersection ofthe law pertaini ext of pubdomain and governmental regulation in the cont
lic roads.
Contrary to Judge Sercombe's concurrence, 265
well settled
Or App at 587 (Sercombe, J., concurring), it.iserty abuts a
that, at common law, a landowner whose propthe highway
public highway has a right of.direct access to ted at cozritrea
from the property.$ That right of access isan easement and
to
ous
log
mon law as a property right ana
ion without comcannot be extinguished through condemnat
et acl., 200 Dr 211,
pensation. State Highway Com. v. Burk
onal highway is
228, X65 P2d 7$3(1954)("When a conventi
ting land an easeestablished, there is attached ~o the. abutSuch an ,easement
y.
ment of access in, and to, the highwa
nguished without
is a property right which cannot be exti
7'u..~''dns'on,
compensation."). But,as this court said in OD0
den, 330 4r 252
x.62 Qx App 88,44, 987 Fed 5~8(1999), rev
is not absolute. We
(2000), a right of access to public roads
owner has a right of
said in that case that "any property
right of access is
access to public thoroughfares," but the is subject to reg~
not specific to any particular location and ic safety, without
ulation by the state in the interests of publ access remains
compensation, as long as some reasonabXe state is entithe
avaiiabl.e. Id.' at 44. Through regulation,in the interests of
y
hwa
hig
ic
tled to restrict access to a publ
other- adequate
public safety, and no compensation is due if r streets. Id.
othe
means of access remain to the owner at242 Qr 63, 73,4Q8
k,
(citing Oregon Xnvestrnent Ca. v. Schrun
P2d 89(].965)).
only to s~iutters of public highwags
e However,that common-law right applies 374.4D5 provides:
.
ORa9
1951
12,
that were constructed before May
ding what ie known ae right
"No rights in or to any state highway; inclu
ing upon any'portion ofamy
abutt
rty
prope
real
of aacesa, shall accrue tv any
reconstructed after May 22, 1957.,
state highway constructed, relocated orof which was acquired prior to May.
h
upon right of way, no part of the widt reason of the real property abutting'
12, 1961, for public use as a highway, by
upon the state highwaq.'

APP 26
Cite as 265 Or App 572(2014)

597

Apparently recognizing the inherent tension in

bringing a candemnation action to acquire defendant's right
of access and also asserting ghat the taking does not give
rise to a'right to compensation, on appeal, the state understandably diminishes emphasis on the law relating to eminent domain and focuses instead on the state's regulatory
authority over access to public highways. On appeal, the
state recharacterizes the issue as whether its action--which
it describes not as the acquisition of an abutter's right off'
access but as the elimination of the curb cuts--resulted in a
compensable taking, That action,the state explains,is nothing more than an exercise of the state's regulatory power
aver access to public highways, and, ,because defendant
retains access to its property from Highway 99W via Warner
Avenue, the trial court correctly granted the. state's oration
in limine to exclude all evidence relating to "any diminution
in value of defendant's property resulting from the elimination of the curb cuffs"However, the state did not purport
merely to regulacte defendant's access to Highway 98W by
the elimination of curb cuts. True, it did that in ~ separate
administrative proceeding initiated after this action,-but in
this action,the state sought also to acquire defendant's abutter'~ right o access through eminent domain.4
It is undisputed. that, in bringing this condezrinatian
proceeding,the state acted pursuantto ORS 374.035(T.),which
authorizes ODOT to exercise the power ofeminent domain to
acquire title to ar an interest in private propertyincluding
access--for the establishment, construction,, ax maintenance
of an existing road ae a "throughway"~:
The state's second motion in limine sought to exclude evidence of damages
resulting fzom the unappealed administrative closure of defendant's driveways.
The trial court.never ruled an the state's second motion. Nar did the state a.xnend
its pleadings to rely on the administrative closure or dQfendant's failure to challenge it.
O1ZS 374.O1U deSnee a "throughway" ae
4a highway or street especially designed for through traffic, over;from or to
which ownars or occupants of abutting laud or other persons have ao easeinent of access or only a Limited easement of access, light, air or view, by
reason.of t ie fast that their property abuts upon the throughway or for amy
other reason."
The state alleged in its complaint and there is no dispute that the section ofhighwayinvolved in this case is to be improved and maintained as a "tlirougliway.

APP 27
598

CfD4T v. Alderwoods (Oregon), Inc:

e of
"The Department of Transportation may,in the nam
the
of
cise
exer
ar
the state, acquire by agreement, donation
any
in
rest
power ofeminent domain, fee title to or any inte,
t and
-real property, including easements of air, view ligh
the dEpartment
access, which in the opinion ar judgment of any thraughis deemed necessary for the construction of
ting state
way, the establishment of any section of an exis tion of a
truc
cons
the
road or highway as a throughway or
sh such acquisiservice road. The department may accompli
edure as real
tion in the same manner and by the same proc oses, except
property is acquired for state highway purp in eminent
that in case the acquisition is by proceedings
edure shall
domain the resolution required under such procirements of
requ
and
ns
specify, in addition to other provisio
being appxolaw, that the real property is requixsd and istructing and
cons
priated for the purpose of establishing,
."
hway
maintaining a'throug

the state exercises

ORS 374.035(1.)(emphases added). When a state. throughe
the power of eminent domain ~a improv
t
tha
,
part
in
way, OR,S 374.055 provides,
le for the pur-,

"the entire plan of improvement is admissib

pose of determining:
"(1) Value of property taken.

ion of right of
"(2) A.11 damages by reason of deprivat
blished or
esta
ted,
access to any b.ighway to be construc
maintained as a thuroughway."

t~.at, when the

In defendant's view, ORS 374.055 requires to acquire the
state chooses not mez~ely to ,regulate, but ough the power
direct access of an abutting landowner thr tled to presof eminent domain, the propexty owner is enti of a'right
loss
ent.evidence. af damages resul~.~g from the
rts, the trial court
of acce$s. For that reason, defendant asse
s resulting from
erred in e~rcluding its evidence of damage
t of direct access
the state's acquisition of its abutter's righ
to Highway 99W.
at 596
In addition, a$ previously noted, 265 Or App
ides:
n 3(Wollhei.m, J., dissenting), ORS 374,405 prov
g what is
"No rights in or to any $tote highway, includin
pxoper~y
real
any
ue to
~U1AWII a8 2'i~'}1~ O~ a.CC888, shall accr
tructed,
cons
abutting upon any po~rtit~n ofany state highway.

APP 28
Cite as 265 Or App 572(20].4)

egg

relocated or reconstructed after May 12, 1951, uppn right

oway, no part of the width o:f which was acquired prior to
May 12, 1951, for public use as a highway, by reason of the
real property abutting upon the sate highway."

Although ORS 374.405 actually proscribes abutting rights

of access far state highways constructed after May Y2, 1951,
defendant asserts that, by implication, it protects access
rzghts like the abutter's common-law right of access to highways, like ~iighway 99W,.constructed before May X2,'1951.
Tn defendant's view, when QRS 374:405 is considered in light
o~ ORS 374.035(1) and ORS 374.055, the required conclulion is ghat, when the state chooses to condemn an abutting
landowner's right of direct access, the owner is entitled to a
determination ofjust compensation by a jury
Defendant's view is supported by the legislative
history of ORS 374.405. In written testimony before a 1951
legislative committee,the chief counsel of the Oregon State
Highway Commi~sian wrote:
"An abutting owner has and possesses access to an egistin.g highway. That tight of access.is a property right which
cannotbe taken from bim without payment by the public of
just compen~ation..~n order to produce an access controlled
highway by converting an existting highway into athrough- .
way,the abutting owners'right of access must be acquired...
If it cannot be acquired by agreement, then it may be
acquixed by the exercise of the right of eminent domain.
But in either event,.just compensation must be paid to the
abutting owner."

Testimony, House Committee on Transportation, HB 619;

Apr 25, 1951 (statement of J. M. Devers, Chief Counsel,
Oregon State Highway Commission). The witness explained
that, without URS 374.405, landownears whose properties
abutted mew roads would have acommon-law abutter's
right of access that could only be acquired through eminent
domain.Id.
The Supreme Court had an opportunity in Burk,
to address the abutter's common-law right of access in the
context of OCLA, 100-16, a predecessor statute of ORS
374.435, which provided that the State Haighway Commission
may commence an action in the circuit court

~...

604

ODOT v. Alderwoods (Oregon), Inc.

owner ax
"fox the condemnation of such interests as such
any and
g
udin
owners may have in said real property, inclacquired is for,
all right of access if the real property to be
compensaright of way purposes, and for determiningifthe
any there be,
tion to be paid therefor, and the damages,
for the taking thereof."
marks omitted).
Burk, 200 Or at 227 (internal quotation
le when the
After concluding that the statute is applicab
.a nonacy
inta
hwa
hig
state seeks to converi~ a conventional
ement ofaccess,the
ceashighway by condemning only an eas
court stated:
blished, there is
"When a conventional highway is esta
ofaccess'in, and
attached to the abutting land an easementerty
right which
to, the highway. Such easement is a prop ."
cannot be extinguished without compensation
Id. at 228.
of .8urk,
The state rejects the precedential value
that, np
hes
blis
esta
asserting that .more recent case law
e's acquis~itiori of
compensation gig due as a result of the stat p~opexty land-.
leaves
a right of access, unless the taking
ss point previously
locked or results in the closure of an acce ds,in the state's
r wor
reserved b~ deed., as in Hanson.In othe
highway is simply
view, an acquisition of access to a public
ic highways, and
a way by which the state regulates publ results in a dotal
if it
results in a coxnpensable taking:.only
of
the property.s ,
use
le
viab
loe~ ofeconomic value and
owledges that diacu$aion in
Iri his concurrence, Judge Armstrong ackn
says the court subsequsntlq disavowed in
Burk,but describes it ae dicta which he 286 Or 151, 156-67,593 P2d 1116(1979).
its opinipn in Douglas County v, Briggs, rring). Although 1 agree with Judge
266 Or App at 581.~(Armatrong, d., concu OCLA sections 100-16(when a state
Armstrong that the court's construction of nonaccess highway by condemning
a
seeks to convert a conventional highway into pay
compensation for the taking) in
mast
state
the
s,
only an eseement of acces
d choose to follow See State v.
worl
I
Burk was dicta, it was.pereuasive dictac thatrev den, 835 Or 380(2p14)(tbllowing
620,
Pad
Brewer, 260 Or App 607, 613,820
and contrary to Judge Armstrong's
persaaeive Supreme Court dicta). Further,
J., concurring) the dicta from Burk
g,
stron
(Axan
sugg8stion, 265 Or App at 682
itutional principles. Rather, the court's
~ou which I rely did not depend on const pretatipn of OCLA sections 100-16, the
digcuesion was in the context of its inter
h authorized the State Highway
predecessor statute to ORS 374.035t~), whiccondemnation an owner's right of
Department to bring an action to acquire byaxguznent, the court, in its eubaeaccess. And, contrsuy to Judge A.rno~strong's discussion in Burk: It did not even
quent opinion in Briggs,.did not disavow thation on whether Article I, section 18,
cit$ the case. The coe2rt merely took no posit

.. ~,

Cite as 265 Or App 572(2014)

601

Respectfully, the state's argument confuses the

state's power of eminent domain, through which the state
accquires a property owner's interest,with the state's regulatory power, through which the state regulates highways fox
the public safety. In the regulatory context, it is well established that no compensation is due when the government
undertakes to regulate an abutting property owner's access,
unless the owner'sloss ofuse ofthe property is virtually tptal.
See, e.g., Schrunk, 242 Or at 68-70 (holding in _declaratory
judgment proceeding that city's denia:~ of property owner's
application fax access to parking lob from's~rset designated
as 24-hour bus loading zone was a reasonable exercise of
regulatory power and.nat~ a taking); Barrett et al. r~. Union
Brid'.g'e Co., 117 Ox 220, 224-25, 243 P 93, rehg den, X1.7 Ox
566, 245 P 30$ (1926)(in action to enjoin bridge developer
from constructing bridge approach in front of the plaintiff's
property, holding that canstruc~ion of bridge approach so as
to eliminate the plaintiff's access did not result in compensable taking o an abutting owner's property and access);
see also Dez~pree v. OD4T, 173 Ur App 623, 629; 22 Pad ?73
(2001)(in inverae~condemnatian claim, holding.that change
in gxade 'of a state highway far legitimate regulatory pu~poses, which did not deprive abutting landowner of all
highway access, dick not result in "legal damage or iz~juxy"
within the meaning of (7~i,S XC?5.?5b for which owners are
entitled to just .compensation); Dept. of Transportation v.
I~uPree, 154 Ur App 181, .185, 961 P2d 232,.rev den, 327
Qr 621 (1998), cert den, 526 US 10X9(1999)(in inverse condemnation action fax widening of state hzghway, the stake's
regulatory change from two points to one paint ofaccess was
nod a taking); Curran v. OD07', lfi1 Or App 781, 786-87, 951
P2d 183 (1997)(holding that inverse condemnation claim
challenging as a regulatory taking the state's placement
of a guard rail that blocked. former access was not ripe for
adjudication, where owners had failed tp apply ~'or permit
for alternative approach, and it therefore was not possible to
~fthe Oregom Constitntian would require payment when "accessis Germinated,"
reasoning that the statute it.was interpreting, ORS 374.420(1), provided safflcient,independent ground on which to base the conclusion that a property ovoner
must, be compensated for a,taking of access when an adjacent road is.made into
a throughv~ay. Brigs,286 Or at 156. Thati conclusion is consistent with the dicta
that Y have cited from Burk cud,as discussed later in this diasentiug opinion, also
suppprta my interpretation of ORS 374.035(1).

,j..

602

ODOT v. Alderwoods {Oregon), Inc.

a result ofa depriassess whether a taking had occurred as the state is corvation of all reasonable access). In shoat, ulatory power
its reg
rect that the state's lawful exercise of
public highway for
to limit ar even to eliminate access to a regulatory taking
a
regulatory purposes does not result in , unless the owner
of an abutting landowner's right of access property from the
is deprived of all reasonable access to the
787.
highway. See Curran, 151 Ox App at
ns the right of
But, when, as here, the state condem ion results
demnat
access, the analysis is quite different. Con k, 200 (3r at 245
. Bur
in a taking'af the ea~enient for access ion in rem. It is nat
act
an
{"A condemnation proceeding is
sons, but the taking
the taking of rights of designated per inal,)). In its comorig
of the property itself." (Emphasis in acquiring defendant's
plaint, the state alleged that it was d on appeal that it is
ten
access, and the state does not con ant's pxoperty, Under
not acquiring an interest in defend uires that the ,state
req
that circuimatance, ORS 374.035(1)
ORS 374.055 requires
pay coYnpenaation for the takaing, and
on evidence of``[a]11 damthat defendant be permitted to put ht of access." The state
ages by reason of deprivation o~ rig uire an abutting landacq
cannot, on the one hand, seek to h eminent domain and,
oug
thr
owner'~ right of direct access
no right to establish just
on the other, claim that there is
ty right.
compensation for the taken proper
Supreme Court's
Our conclusion finds support in the
, 286 Ox 151, 593 P2d
opinion in Douglas County v. Briggs k action to establish
too
1115 (1979). In Brigs, the county hway pursuant to ORS.
oug
an exaisting county road as a thr
es:
374.420(1), which provid
missioners may
"The county court or board ofcounty com
ation Qr exercise ofthe
acquire by purchase, agreement, don
any interest in real
pawex of eminent domain, fee title or
view,light and access,
property,including easements of air,
ion
uct of a throughway or
which is necessary for the constraaa
ating county road as
the establishrxient pf a section of e~i
a.throughway."
does not specifically proThe court noted that the statute
perty owners whose
vide that counties must compensate pro ds are texnainated.
roa
rights of access to adjacent county

APP 32
Cite as 265 Or App 572(2014)

603

Briggs, 286 Or at ].54. The court explained, however, that

"the specified means of acquisition" described in the statute
indicates that
"the property owner must agree to the termination of his
rights ofaccess unless the county acquires the right by condemnation. This,in turn, suggests that the rights of access
cannot be terminated except by payment unless they are
donated to the county by the prpperty owner."

Id. After reviewing the legislative history ofORS 374,420(1),

the court concluded that"the legislature interidecl that property owners be compensated fax the termination of their
rights of access upon the convexaion of an ordinary county
xaad into a throughway." Id. The court held that "ORS
374.420 requires the county to pay propexty owners for the
loos oftheir rights of accea~ when an eatabliahed county road
adjacent thereto is made into a throughway."Id. at 156. The
court further held that, under ORS 374.420, the question of
whether the property owner is entitled to compensation for
loss of adequate and reasonable access is a question offact.
Id. at 157.
I recognize that ORS 374.420 is not directly agplicable hire, because it relates to county roads rather than to
state highways. Additionally, the legislative hiatary of ORS
374.420 to which the court referred obviously does not bear
on the legislatuxe's intent w:it~ respect to ORS 374,035(1).
However, given the similarity of the statute's text to 4RS
~74.U35(1), the court's opinion in Briggs supports the view
that, if the Supreme Court had the opportunity to determinewhether there is a right. tojust compensation for access
rights condemned undex ORS 374.035(1), the cota.r~ would
conclude that "the apecifled means of acquisition" described
in the'statute "auggeata.that the rights of access cannot be
terminated except by.payment" unless they are donated to
the state by the property owner. Briggs, 286 Ur at 154;. see
17dvis v. Wasco IED, 286 Or 265, 272, 593 P2d. 1152(l9?9)
(whenever possible, courts should attempt to construe statutes on the same subject as consistent and~in harrriony with
one another)?
Judge.Armstrong would resolve this case on constitutional principles, see
285 Or Apg at b$2(Armstrong, J., concurring).

...

604

ODOT v. Alderwoods(Oregon), Inc.

nson, 162
The state cites this court's opinion in Hac
on that an elimiOr App at 41-44, in support of its positi hway does not
nation of a right of access along a state higable access on
son
result in a taking if there is other rea
portions of that
axe
re
the
another public road. In my view,
usibly support either
opinion, read in i.sola~ion, that can pla is understood in its
e
party's position but that, when the cas suasive. In Hacnson,
entirety, the skate's reading is not per property owners'
of tie
the state had purchased a portion
of State Highway 20
_property in 1951 for the development expressly reserved
had
(Highway 20) in Bend. Tl~e deed
to Highway 2d at a desthe property owners'right ofaccess
condemned a portion
ignated location. In 1992, the state t of a highway widof the property owners' property as parlied fox a permit to
app
enzng project. The property owners perty to Highway 20
pro
ix
construct an access road from the
1951. deed, and the state
at the location specified in the lic safety concerns. Xd. at
dexued the application, citing pub
g, the property owners
41. In the condemnation proceedin nation,seeking just
dem
filed a counterclaun for inverse con vaXue of the remainthe
compensation for the decrease in
ial of access. The state
ng property because of the den
' to pay for the denial o
asserted that it was nwt obligated r had another means of
ne
access, because the property ow
state's contention amd
ed
access. The traial court reject the im for compensation to
' cla
submitted the property owners
the Jul'
that the trial court
On appeal, the state contended
for a directed verdict on the
had erred in denying its motion
ion counterclaim, conproperty owners' inverse condemnat e the state to compenuir
tending that "'the law does not req
access to a public highway,
s~ate property owners for a loss of
ess remain available."
particularly when other means of acc ded that they did not
pon
Id. at 43. The property owners res
ess to a public highway;
t
acc
los
merely claim that they ha.d
ess at a specific location
they claimed xhat they loet acc
reserved to them by deed:.
vant that they may have
"According to plaintiffs, it is irrele
e they owned a right to
other access to the highway, becaus
bean.taken without
a particular route of access, which hay eral constitutions."
fed
compensation in violation ofstate and

APP 34
Cite as 265 Or App 572(2014)

605

Yd. This court agreed with the property owners.In affirming

the trial court's decision to allow the inverse condemnation
~.
counterclaim to go to the jury, we explained:
"In this case, plaintiffs' predecessors in interest conveyed land to the state, subject to the reservation of an
easement of access to Highway 20 at a Iocati.on specifically
described in the deed. Although nonpossessory, an easement is an interest in land. Bunnell v. Bernau, T25 Or App
440, 442,865 P2d 473(1993). When it is taken by government action, compensation must be paid. Thornburg v. Part
ofPortland, 233 Ox 178, 185, 376 P2d 100(1962). A `taking'.
may occur either by outright condemnation ar by governmental regulation of use that has the effect ofrendering an
owner's property valueless. See, e.g., Boise Cascade Corp. v.
Board ofForestry(S42.X59),325 Or 185,935 P2d 411(1997);
Cape. v. City'of Gannon ~.8eacch, 317 Or 339, 85~ P2d 1083
(1993). In tbas case, there is na dispute that the effect of .
the state's denial of plaintiffs' application fox a permit to
use their .easement effectively renders the easement valuel.ess. It necessarily follows that the state has taken the
easement, a property right, and.that the state and federal
constitutions require that the state must pay compensation
in cona~quence."

Id. at 43-44. Notably, and contrar.y to the implication of

Judge Sercombe's concurrence 266 Ox App at S87(~ercombe,
J., 'concurring), Hanson is #'actually distinguishable. The
plain~iffe' property in Hanson did abut the highway; their
predecessors had deeded to the state the property adjacent
to the highway, and the plaintiff's held only an express e~asement for access. The opinion.related to an inverse condem~ation claim resulting from a denial of the permit to use the
easement. This court concluded that the denial ofthe~permit
rendered the easement valueless, resulting in a regulatory
taking.
The sate cites a different portion ofHanson.that it
asserts supports its position:
"The state insists that, under[Schrunk],it i~ entitled to
restrict access to a public highway without compensation in
the interests of public safety. The. statEment is true ag far
as it goes. At common law;.any property owner has a right
of access. to public thoroughfares. [Burk, QUO Ox at 22$].
But'the right of access is specific to no particular location

APP 3S
606

ODfJT v.~Alderwaods(Oregon), Inc.

the state without

and, thus, is subject to regulation by
access remains
compensation as long as some reasonable
in [Schrunk]
available. Thus, the court was careful to hold a property
ss to
that the state was authorized to deny acce
remain to the
ss
of
acce
ns
at one location `if adequate mea
a, 242 Or at
runk
(Sch
'
owner at the other street or streets.
w right enti-la
mon
73. That makes sense, because the com
not access at a partles the owner only to access generally,
state regulactes access
ticular location. As a result, ruhen the
has been no taking of
merely at a particular location, there
xins available.
the common-law right, because access remc
case. Plaintiffs
"But that i.s not wk~at happened in this
t of access, but an
reserved not a general common.-law righ
y at a specific locaeasement of access:to a specific highwa
ss at that location,
acce
m
tion. When the state denied the
rely--what had
enti
there was 'a taking of precisely--and

bean reserved in the deed."

state's,view, the
1fi2 Or App at 44(emphasis added). In thet a condemnation
emphasized text supports its position tha ht of acceas such
action seeking to acquire acommon-law rigstreet is not comng
as defendant's along a particular abutti er abutting streets,.
oth
m
fro
pensable if access is.available
eral and not spebecause defendant's right of access is gen
that statement, we were
cific to ariy location. But,in making
the common-law
addressing only the state's right to regulate
public roads in the
right of"any property owner" to access port to address the
interests of public safety. We did not pur downer's right to
question here raised about an abutting lanacquire the landto
just compensation when the state seeks(Tk~.at is a distinction
owner's abutter's right ofdirect access. eciate.) Nar did we
that the concurring opinions do not appr
uire an abuthold that when, as here, the state seeks to acq
er is not entitled
ter's right of direct access, the property own m the taking.
to present evidence of damages resulting fro
Supreme
Finally,contraryto the state's contention,the
l Paving Co., 2~4
Court's opinion in Higlzwacy Com. v. Centra its:position, In
Or 71, 399 P2d 1019(1965), is not helpful togravel business'
that case, the defendants owned a sand and
indirect access.
that did not abut the highway but that hadsing
over arail-.
to the highway by means of a graded crosfic
lroad. Tlie
road right-of-way owned by Southern Paci Rai
endants' land
state sought to condemn a portion of the def

..

Cite as 265 Or App 572(2p14)

6~7

for construction of a frontage road in connection with the

widening,improvEment, and maintenance ofth.e highway as
a throughway.Id. at ?2. Citing ORS 374.085,the defendants
sought to introduce and the trial court admitted evidence of
the value of the condemned property that included consideration of"circuity of travel" resulting from the defendants'
loss of what the defendants characterized as "direct" access
to the highway over the railroad grade. Id. at 73. The trial
court refused to give the state's requested instruction that
"nothing.can be awarded *** on account of inconvenience
caused by circuity of travel." The trial court also gave an
instruction, to which the state excepted, that permitted

the jury to consider the interference with 'the defendants'

access in determining the damage, if any, to the property
not taken. ~'d. at 73-74.
On appeal, the Supreme Court reversed the trial
cauxt. Ths Supreenne Court rejected 'the defendants' contention .that the case was controlled by ORS 374.035, explaining that the defendants did not have an interest .in real
property that was ~ubject.to that statute. Contrary to the
state's argument here,~ the.court did not base its reasoning
on the concluaian that an abutter's right of access is not an
interest in .real prnperty far which cona~pe~.eation must- be
paid: Ranier, the court concluded that the defendants in

that case did not have an abutter's :right of access to the

highway because their property did not abut the highway.Id.
The court explained that, although the construction of t~.e
throughway created an impediment in travelling between
the defendants' land and the new highway, that inconvenience was the same kind of inconvenience suffered by the
general public and was not a deprivation of an interest in
land. Id. at 74-75. Unlike in this case, the property owners
in Central Paving had no interest in property that was subject 'to ORS 374,035(1); thus, that case has no bearing on
that statute's operation when the stake seeks tci acquire such
an interest.
Here, it is not disputied that the state was entitled
to eliminate defendant's driveways in the e~rcise of .its
regu~atary authority over. public highways. But this court
need not consider whether the elimination o#'both driveways
along Highway 99W constituted a "regulatory taking" for

APP 37
608

ODOT v, Alderwoods(Oregon), Inc.

That
which defendant would be entitled to compensation. -chal
question zs not before, us, because defendant did not ver,
Howe
ienge ODOT's administrative closure ofits access.$
t's right
because the state sought also to acquire defendan
tled to
of access through eminent domain, defendant is enti
establish just compensation for that taking.
Xn his concurring opinion,Judge Armstrong acknowlct access
edges that defendant has an abuttex's right of dixe
ss can
to the highway and that the staxe's removal ofthe acce gon
(7re
result in a taking under Article I, section 18, of ther than a
othe
Constitution, ifthe state's use is for a purpose
, any modifigoad purpose. But, in Judge Armstrong's view
a landownes
cation of a road for road purposes that deni
taking. In
er's access does nat give rise to a compensable tum" the
as "dic
so concluding, Judge Armstrong discounts ter's right of
Supreme Court rationale in Burk that an abut
sted only by
access to a conventional Highway "can be dive
abutting
the
to
condemnation of the easeament appurtenant
g explains that
property." 2Q0 Or at 231. Jude Armstron
nciled with the
the court's conclusion in .8urk cannot be reco
ext of regucourt's analysis in more recent cases in the cont 242 Or at
unk,
lations that afifect road access. See, e.g., Schr that the abut?3(holding in an inverse condemnation casesubservient to
~ing landowner's right of diraet access was governmental
its
the City of Portland's propex exercise of
convenience, and
and
ty
safe
powers for purposes of public
r's property
that the eli.m~inataon ofaccess from the landowne If, Judge
ng).
to the affected street did not constitute a taki regulation
nt's
Armstrong's concurrence reasons,a governme
es the owner
ofland does not result in a taking unless it heav
e.g., Coast
with no economically viable use of the ]and, see,
146-b1, x.17
Range Conifers r~. Board ofForestry,339 Or 136,
a complete
Pad 990 (2U05), then, necessarily, absent'.such an abutof
loss in economuic value, the state's condemnation ectfully,
Resp
ng.
taki
a
e
ter's right of access cannot canst~itut
Burk and
Judge t~rmetxong's attempted reconciliation of the case
o~
Schrunk cannot be squared with a Holistic view
Armstrong, 265 Or App at
e for does the st~icte ar~ue~ as asserted by Judge on is due because defennsati
compe
no
582.88 (Arznatrang~ d., concurring), that
ously terminated by regulatory
dant hoe no right of access, it having been previ
action,

APP 38
Cite as 265 Or App 572(2014)

609

law, which shows that there is a difference between eminent domain and regulation. It also cannot b~ squared with
the Supreme Court'a holding in Briggs, 286 Qr at 154-57, in
which the court construed ORS 374.420, a statute similar.
to ORS 374.035, on which the stag relies in this case as the
souacce ofifis au~harity to condemn defendant's right of direct
access, and in which the court held that the county's autharity to convert an existing road into a limited access road was
conditioned on the county paying the abutting landowner far
loss of access. Because I conclude that the state is similarly
required to compensate defendant under (aRS 374.035 and
to permit defendant to introduce evidence of damages "by
reason of deprivation of right of access" under ORS 374.055,
I would nod reach the conclusion that Judge Armstrong
reaches in his Concurring opinion that na compensation is
required under the Oregon Constitution.
I note, finally, that Judge Armstrong supports his
conclusion with an argument that the state has not made
for itself: that the state's regulatory closure of direct access
from defendant's property by elimination ofcurb cuffs means
that defendant's property dogs not have a right of direct
access and therefore suffered no lass in value due to the condemnation of the right of access..
In his concurring opinion, Judge Sercombe.shares
hie view that defendant does not have and never had a common law right ofdirect access to Highway 99W-that could be
subject to compensation;rather,he asserts,the only pxoperty
interest in street access held by an abutter atcommon law is
a general, unfixed right to access the street, either directly
from frontage of the property along the stxeet or indirectly
from a private or public approach that borders the property,
and, unless a government takes that entire interest---both
direct and indirect access--no compensation is owned under
Article I, section 18. As I have explained in this dissenting
opinion, I would resolve this case under ORS 874.035 and
therefore would not reach the constitutional question. But
I nonetheless believe that Judge Sercombe's position is contradicted by the cases di$cussed herein.
Finally, Judge Sercombe characterizes my position
to be that defendant is entitled to compensation fax the lase

A~P 39
610

OD4T v. Alderwoods(Oregon), Inc.

of its right of access at the particular locations of the driveways, 265 Or App at 588 (Sercambe, J., concurring), but
that is not my view. My position is only that,in this eminent
domain proceeding for the acquisition of defendant's abutter's right ofdirect access to Highway 99W,defendantis entitled to establish just compensation for that taking. Xt may be
that, because the state'has the authority to regulate access
to a public highway and has dane so in this case, defendant
would not ultimately be able to prove that it has been damaged by the state's acquisition of its common-law abutter's
right of access. But that is a matter of proof. Contrary to
the state's contention in its motion in limine, and the views
expressed in both concurring opinions, the state's acquisition of defendant's abutter's right of access through eminent
domain did result in a.taking for which defendant is entitled
to put vn evidence of damags~.
As the court said in Briggs, the factors fox determiningjust compensation for a taking of access iAclude "the
highest and best use of particular property and whether its
access to a public road far such use is adequate and reasonable or has been impaired." 286 pr at 157;, see ~ also State
Dept. of Transportation v. Schoppert, 82 4r App 317., 314,
728 P2~ 80 (~98fi)(instruction correctly advised juxy that
it wa.s to consider the nature of the ~andownex's remaining
access in assessing damages).I would conclude that the trial
court erred in excluding evidence ofthe diminished value of
defendant's property as a result of the state's acquisition of
defendant's.direct right of access to Highway 99W and that
the case s~iould be remanded for fuarther. proceedings.
Accordingly, I respectfully dissent.
Haselton, C. J., Nakamoto, J., Egan, J., Tookey, J.,
and Schuman,S. J.,join in this dissent.

"~I

611

Cite as 265 Or App 572 {2014)

APPENDIX

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CERTIFICATE OF COMPLIANCE
WITH ORAP 5.05(2)(d)

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I certify that(1)this brief complies with the word-count limitation in
ORAP 5.05(2)(b) and (2)the word-count of this brief(as described in
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smaller than 14 point, as required by ORAP 5.05(4)(g).

~~'~~v~Charles F. Hudson
Of Attorneys for Petitioner on Review

CERTIFICATE OF FILING AND SERVICE

I hereby certify that I filed the foregoing Corrected Petition for Review of
Alderwoods (Oregon), Inc. by causing it to be electronically filed with the
Appellate Court Administrator on November 21, 2014, through the appellate
eFiling system.
I further certify that I served the foregoing document by causing by
causing two true copies thereof to be mailed by first-class mail on
November 21, 2014, as follows:
Denise G. Fjordbeck
Attorney in Charge .
Civil/Administrative Appeals
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096

~~'~~ ~
Charles F. Hudson
Of Attorneys for Petitioner on Review