Courter v. City of Portland

398 P.3d 936, 286 Or. App. 39, 2017 Ore. App. LEXIS 742
CourtCourt of Appeals of Oregon
DecidedJune 7, 2017
Docket130507693; A157740
StatusPublished
Cited by10 cases

This text of 398 P.3d 936 (Courter v. City of Portland) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Courter v. City of Portland, 398 P.3d 936, 286 Or. App. 39, 2017 Ore. App. LEXIS 742 (Or. Ct. App. 2017).

Opinion

SERCOMBE, P. J.

Plaintiffs appeal a judgment in favor of defendant City of Portland (the city) dismissing plaintiffs’ inverse condemnation claim and their request for declaratory relief under the Declaratory Judgments Act, ORS 28.010 to 28.160. In 2003, the city condemned an easement for the “placement of utilities” beneath an access road on plaintiffs’ property, in order to bury pipes to connect a water tank to the city’s water system. According to plaintiffs, the city agreed during the 2003 condemnation trial to bury the pipes at a depth of at least 18 feet but later buried them as shallow as four feet. Plaintiffs assert that the city therefore exceeded the scope of its easement and effected a taking without just compensation in violation of Article I, section 18, of the Oregon Constitution.1 On the city’s motion, the trial court granted summary judgment on the ground that plaintiffs’ claims were not ripe for adjudication. Plaintiffs raise two assignments of error on appeal, first, arguing that the trial court erred in implicitly concluding that the city was not barred from defending the action under the doctrine of judicial estoppel and, second, asserting that the trial court erred in concluding that their claims were not justiciable. In response, the city contends that the case is not ripe and that judicial estoppel does not apply. The city also raised three alternative bases for affirmance, including an argument that a court cannot issue a declaratory judgment construing the terms of a prior judgment.2 We conclude that the case is ripe for adjudication and that a declaratory judgment action [42]*42can, under these circumstances, be brought to construe the prior judgment. Therefore, we reverse and remand.3

On appeal from a trial court’s grant of a motion for summary judgment, “we view the evidence and all reasonable inferences in the light most favorable to” the nonmov-ing party “for the purpose of determining whether there is no genuine issue of material fact and the [moving party] is entitled to judgment as a matter of law.” Farnworth v. Rossetto, 285 Or App 10, 12, 396 P3d 272 (2017).

This case concerns a dispute about the results of a 2003 condemnation trial. At that time, the city exercised its power of eminent domain to acquire property owned by plaintiffs in order to build a water tank and associated facilities. Following the trial, a jury reached a verdict awarding plaintiffs $596,000 in just compensation for the taking. The trial court then entered a judgment, which granted the city a fee interest in 1.6 acres of plaintiffs’ land and “an easement for ingress and egress and the placement of utilities” along an access road on plaintiffs’ property.

Subsequently, the city constructed the water tank and buried pipes to connect the tank to the city’s water system. The city buried the pipes at depths ranging from four to 15 feet beneath the access road. According to plaintiffs, by doing so, the city exceeded the scope of its easement, which, plaintiffs contend, required them to bury their pipes at a depth of at least 18 feet. Plaintiffs subsequently filed a complaint raising a claim of inverse condemnation and a request for declaratory relief.

In their complaint, plaintiffs alleged that, at the 2003 trial, the city represented—through its witnesses and through counsel—that the pipes would be buried at a depth of at least 18 feet, and that, if they were buried at that depth, they would not interfere with plaintiffs’ ability to develop their property in the future. According to plaintiffs, now, before they can develop the property, they will have to dig up and move the pipes at great expense. Furthermore, plaintiffs asserted that, during the 2003 trial, they were barred [43]*43from arguing that they should receive remainder damages related to the placement of the pipes as a result of the city’s representations and the trial court’s instructions to the jury.

With respect to their inverse condemnation claim, plaintiffs alleged:

“The substantial interference with the reasonable use and enjoyment of Plaintiffs’ property, and/or the City’s exceeding the physical limits of the utilities easement granted in the 2003 trial by placing pipes less than 18 feet below the prior elevation of the access road represents a taking of Plaintiffs [’] property for which they are entitled to just compensation under Article I, Section 18 [,] of the Oregon Constitution.
"*****
“The City’s substantial interference with [plaintiffs’] property and exceeding of the scope of the easement resulted in a taking of [plaintiffs’] property, or alternatively damages to the remainder of their property, preliminarily valued on information and belief at not less than $400,000, the exact amount to be determined by the jury at the time of trial.”

In their request for declaratory relief, plaintiffs contended:

“Defendant City asserted through witnesses under oath and counsel acting as an officer of the court that its taking of Plaintiffs’ property in the 2003 trial was to be limited to pipes buried in their access easement not less than 18 feet deep. Plaintiffs were prevented from introducing evidence that the City would fail to meet this obligation. Therefore, the City succeeded in its argument to exclude evidence from Plaintiffs on the City’s potential for mendacity, and successfully represented to the Court and the jury that Plaintiff’s damages should not include any amount related to the placement of pipes at this 18 foot depth.
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“Plaintiffs pray this Court for a declaration that the easement granted to the City in the supplemental general judgment in City of Portland v. Courier, Multnomah County Circuit Court Case No. 9810-07438, included the restriction that any utilities ‘placed’ pursuant to that easement [44]*44be at a depth not less than 18 feet from the surface of the access easement as it existed on November 21, 2003. Plaintiffs further pray for a declaration that the City is judicially estopped from claiming that the easement means anything to the contrary of the testimony and representations offered by the City in that trial.”

The city moved for summary judgment, arguing, inter alia, that plaintiffs’ claims were not ripe for adjudication. The city contended that plaintiffs had “neither alleged nor can they show any actual or imminent injury in fact.” The city asserted that any threat of injury to plaintiffs was as yet “contingent on future events of a hypothetical nature,” because a court could not adjudicate whether they were harmed by the placement of the pipes until plaintiffs successfully rezoned their property and obtained approval for a development plan that required them to move the pipes. Moreover, the city argued that such a plan might never be approved, because it was unlikely that plaintiffs could devise a development plan that would both require them to move the pipes and comply with the city code.

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Cite This Page — Counsel Stack

Bluebook (online)
398 P.3d 936, 286 Or. App. 39, 2017 Ore. App. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/courter-v-city-of-portland-orctapp-2017.