{"id":251,"date":"2021-09-10T17:14:55","date_gmt":"2021-09-11T00:14:55","guid":{"rendered":"https:\/\/alterman.law\/blog\/?p=251"},"modified":"2021-12-26T17:30:18","modified_gmt":"2021-12-27T01:30:18","slug":"if-the-government-builds-on-your-property-dont-wait-30-years-to-sue","status":"publish","type":"post","link":"https:\/\/alterman.law\/blog\/if-the-government-builds-on-your-property-dont-wait-30-years-to-sue\/","title":{"rendered":"If the government builds on your property, don’t wait 30 years to sue"},"content":{"rendered":"

In its September 1 opinion in Walton v. Neskowin Regional Sanitary Authority<\/em>, 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.\u00a0 The court’s opinion is, however, remarkable for what it does not<\/strong> discuss.<\/p>\n

With one exception, the facts are straightforward.\u00a0 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.\u00a0 The property had a house with a septic tank.\u00a0 In 2001, James Walton deeded the property to the three plaintiffs, his children.<\/p>\n

In 2014, Neskowin told the Waltons that the septic tank had failed, and that they must connect their house to the sewer.\u00a0 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.\u00a0 Neskowin denied that it had made any such agreement with James Walton.<\/p>\n

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.\u00a0 They also alleged that Neskowin and their father had made the agreement for a free sewer connection.<\/p>\n

Neskowin\u2019s 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.\u00a0 The trial court agreed with Neskowin and granted summary judgment to Neskowin.<\/p>\n

The Waltons appealed.\u00a0 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.\u00a0 The court of appeals rejected their argument and in a short opinion affirmed the trial court.<\/p>\n

That\u2019s what\u2019s in the opinion, and it\u2019s not particularly remarkable.\u00a0 If the government starts to dig on your land, your claim accrues and the statute of limitations begins to run.\u00a0 Sue promptly.\u00a0 However, the opinion leaves out the answers to two questions.<\/p>\n

The first question comes from the law of easements<\/a>.\u00a0 If James Walton had given permission to Neskowin to build the sewer line through his property in exchange for a free hookup, then Neskowin\u2019s use was not adverse.\u00a0 The statute of limitations for a trespass would not start to run until Neskowin’s use became adverse to the Walton family \u2013 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.\u00a0 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.\u00a0 The court’s opinion doesn’t mention that important point.<\/p>\n

The second question is why the trial court decided the case on a motion for summary judgment.\u00a0 A trial court can’t grant summary judgment if there is a disputed material fact.\u00a0 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\u2019t.\u00a0 The court of appeals recognized that the fact was disputed; in a footnote it wrote \u201cRather, it is plaintiffs\u2019 assertion, albeit contested by defendant, that the previous property owner \u2013 plaintiffs\u2019 father \u2013 had allowed defendant to install the sewer line \u2018by permission *** for a no-charge hookup.\u201d\u00a0 How, then, could the trial court have granted summary judgment to Neskowin?<\/p>\n

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. \u00a0Walton wrote: \u201cCurrent circumstances: A NRSA sewer line now exists without permission or easement approximately 100\u2019 on Walton property.\u201d\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 The court’s opinion is, however, remarkable for what […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,2],"tags":[],"class_list":["post-251","post","type-post","status-publish","format-standard","hentry","category-easements","category-real-estate"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/posts\/251","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/comments?post=251"}],"version-history":[{"count":1,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/posts\/251\/revisions"}],"predecessor-version":[{"id":252,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/posts\/251\/revisions\/252"}],"wp:attachment":[{"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/media?parent=251"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/categories?post=251"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alterman.law\/blog\/wp-json\/wp\/v2\/tags?post=251"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}