Dunn v. Milwaukie
Oregon Court of Appeals
Decided: 02/23/2011
PROPERTY and EMINENT DOMAIN: Defendant, the City of Milwaukie, appealed from a judgment awarding a homeowner $58,333 plus attorney fees as compensation for damage to her home resulting from raw sewage that backed up through bathroom fixtures when the city "hydrocleaned" a nearby sewer line. The City argued that the trial court erred on two grounds: first, that plaintiff presented no evidence that the city intended the harm; and second, that plaintiff's property was not "taken" because the damage caused by the sewage was not a substantial interference.
Under Article I, section 18, of the Oregon Constitution, if a state government entity takes private property for a public use, it must provide the owner with just compensation. Typically, actions involving Article I, section 18, revolve around a government entity exercising its power of eminent domain by condemning private property; the dispute is generally about the adequacy of the compensation. However, if government, in the process of performing some act for the benefit of the public, inflicts a substantial interference with the use and enjoyment of private property, that act can amount to a taking and give rise to a claim by the property owner for compensation. The question in this case is whether there is evidence that the sewage intrusion was the natural and ordinary consequence of the city's hydrocleaning.
Plaintiff here did not argue at trial that the city's program was negligently designed, nor that the city's employees maliciously or negligently carried out that program.(3) Rather, the evidence at trial was that the city employees carried out the hydroclean program "by the book": If, pursuant to a particular hydrocleaning episode, the default level of pressure--1,500 to 2,000 PSI--causes sewer water or a sewage stench to flow to the bathroom fixtures of a home or business, utility employees designate the area as one requiring "low pressure." A reasonable inference from the evidence in the present case is that the sewage intrusion plaintiff experienced was the natural and ordinary consequence of the city's high-pressure hydrocleaning of the sewer lines running in front of her house.
