In its September 1 opinion in Walton v. Neskowin Regional Sanitary Authority, 314 Or App 124, the court of appeals reinforced a basic point of Oregon condemnation law: when the government physically invades your property, the six-year statute of limitations on your takings claim begins to run. The court’s opinion is, however, remarkable for what it does not discuss.
With one exception, the facts are straightforward. In 1993 or 1994, the Neskowin Regional Sanitary Authority installed an underground sewer line through the property of James Jefferson Walton, father of the three plaintiffs. The property had a house with a septic tank. In 2001, James Walton deeded the property to the three plaintiffs, his children.
In 2014, Neskowin told the Waltons that the septic tank had failed, and that they must connect their house to the sewer. The Waltons told Neskowin that their father had given Neskowin permission to build the line through his property in exchange for being allowed to hook up without charge. Neskowin denied that it had made any such agreement with James Walton.
In 2017, the Waltons sued Neskowin and asked for compensation for inverse condemnation that resulted (they said) from Neskowin building the line through their father’s property. They also alleged that Neskowin and their father had made the agreement for a free sewer connection.
Neskowin’s primary defense was that the claim was time-barred: the statute of limitations for their claim was six years, and the Waltons had brought their claim more than six years after Neskowin had built the sewer line. The trial court agreed with Neskowin and granted summary judgment to Neskowin.
The Waltons appealed. Their principal argument was that the 6-year statute of limitations for an inverse condemnation claim began to run when Neskowin first refused their demand to be compensated, not when Neskowin built the sewer line. The court of appeals rejected their argument and in a short opinion affirmed the trial court.
That’s what’s in the opinion, and it’s not particularly remarkable. If the government starts to dig on your land, your claim accrues and the statute of limitations begins to run. Sue promptly. However, the opinion leaves out the answers to two questions.
The first question comes from the law of easements. If James Walton had given permission to Neskowin to build the sewer line through his property in exchange for a free hookup, then Neskowin’s use was not adverse. The statute of limitations for a trespass would not start to run until Neskowin’s use became adverse to the Walton family – that is, until Walton or his children asked to connect to the sewer line or told Neskowin to move the line off of their property. The Walton children did allege that their father had given Neskowin permission to build the line, which if correct would have kept the statute of limitations on their claim from starting to run until Neskowin had denied their request for a free sewer connection. The court’s opinion doesn’t mention that important point.
The second question is why the trial court decided the case on a motion for summary judgment. A trial court can’t grant summary judgment if there is a disputed material fact. Whether James Walton had given Neskowin permission to build the line was a disputed material fact: the opinion itself discloses that the Waltons alleged that their father had given Neskowin permission to build the sewer line, and Neskowin alleged that he hadn’t. The court of appeals recognized that the fact was disputed; in a footnote it wrote “Rather, it is plaintiffs’ assertion, albeit contested by defendant, that the previous property owner – plaintiffs’ father – had allowed defendant to install the sewer line ‘by permission *** for a no-charge hookup.” How, then, could the trial court have granted summary judgment to Neskowin?
The answer may lie in a document in the trial court file, stated to be a letter dated May 25, 2000 from one of the plaintiffs, Jeff Walton, to Neskowin. Walton wrote: “Current circumstances: A NRSA sewer line now exists without permission or easement approximately 100’ on Walton property.” Whether or not James Walton had given Neskowin permission in 1993 to build the line through his property, seven years later his son Jeff Walton told Neskowin that Neskowin had built the line without James Walton’s permission — enough to start the clock ticking on the six-year statute of limitations.