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Slip Sliding Away

There have been many cases where a property owner has claimed that an action of a local government damaged his or her property.  One of the better known recent cases is Vokoun v. City of Lake Oswego, 335 OR 19 (2002).  In that case, the property owners claimed a city storm drain caused a landslide damaging their property and they filed a claim of inverse condemnation against the city.  Inverse condemnation arises when the property owner recovers just compensation from the government taking of its property even though the government did not institute a condemnation proceeding.  The property owner does not need to show the government’s actions deprived it of all use and enjoyment of the property; “substantial interference” is sufficient.  The landslide in Vokoun was certainly a “substantial interference” of the owners’ use and enjoyment of their property.

The property owners in Vokoun prevailed at trial.  The Court of Appeals reversed the trial court’s decision but, on further appeal, the Oregon Supreme Court reversed the Court of Appeals decision.  The Supreme Court confirmed the longstanding opinion that a claim for inverse condemnation requires a showing that the governmental act causing the “taking” was done with the intent to take the property for a public use.  You might assume that all the government may need to show is that it did not intend to cause the landslide and hence there was no taking.  But you would be wrong.  The Vokoun Court phrased the issue as: “the question is whether plaintiffs presented evidence from which a jury could find that the natural and ordinary consequences of the city’s construction of the storm drain was to destabilize plaintiffs’ property, causing the landslide.”  That is, the property owners did not need to show the government intended to cause a slide that resulted in the damage, only that the government intended to do the public project – i.e., construct the storm drainage – and the “natural and ordinary consequences” of constructing the storm drain, in the manner in which it did, resulted in the damage.

So how do you prove the natural and ordinary consequences of the government’s public project is the damage to the subject property?  You hire an expert who will review the government’s project and say so.  And what does the government do in response? It hires an expert who will testify that the government’s project had nothing to do with the damage.  That is what happened in a recent case in Benton County, Flake v. Benton County.  In this case a storm drain had been in place uphill from the plaintiffs’ property for many years and was purportedly working well.  The county approved a development uphill that increased the impervious area and did some road work including placing a culvert that directed the water onto the plaintiffs’ property.  In January 2012 the plaintiffs’ house began to move and, ultimately, slide down the hill.

The plaintiffs hired an expert who concluded that the natural and ordinary consequences of the County’s actions was to cause increased saturation of the uphill ground that led to the plaintiffs’ house sliding downhill.  The plaintiffs sued the County for inverse condemnation.  But the County hired its own expert who, not surprisingly, disagreed as to any contribution the County’s project may have had to the plaintiffs’ house slide.  The County’s expert concluded there were other factors, unrelated to the County’s actions, which led to the slide.

When there is a battle of the experts who decides who is right?  The non-experts, i.e., the jurors.  In this case the jury went with the County’s expert and concluded that the slide was not the natural and ordinary consequences of the County’s work.  This was a factual decision left up to the jury to decide and, barring any legal mistakes that might have occurred during the course of the trial, this is the final decision.

In Vokoun the jury went with the plaintiffs, and in Flake the jury went with the government.  The issue of whether inverse condemnation has occurred in these matters ultimately comes down to the facts and, probably more importantly, whose expert is more credible to the jury.

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