State ex rel. Department of Transportation v. Glenn

THORNTON, J. This is an appeal by the state following a verdict and judgment for the defendants in a condemnation proceeding. In addition to awards for the value of two parcels of real property taken and for loss of crops on the property acquired, defendants also received an award of "special damages” on account of injury to defendants’ livestock alleged to have occurred as a result of having to move the stock from the condemned strip to another portion of defendants’ ranch. Prior to trial plaintiff moved to strike from defendants’ answer an allegation of the "special damages” referred to above on the ground that «* * * sai(j matter is irrelevant and immaterial, and constitutes a pleading of noncompensable items of damage.” The trial judge denied plaintiff’s motion. On appeal plaintiff’s sole assignment of error is the denial of its motion to strike. The central issue on appeal is as to the last award, namely, whether defendants were entitled to recover for damages to their livestock in this proceeding. In other words, the issue is whether a property owner has a right to recover in a condemnation proceeding damages resulting from the relocation of unattached personal property. So far as we can determine, this is the first time that this precise question has been before the appellate courts of this state. The essential facts may be summarized as follows: Pursuant to a plan to modernize the Old Oregon Trail Highway, plaintiff, on various dates beginning with April 20,1972, took physical possession of several parcels of defendants’ ranch in Union County and proceeded to construct the highway. In January 1974 cracks appeared in the soil supporting one of the grades that had been constructed on [416] an occupied parcel. The threat of landslide necessitated the occupation of an additional 20 acres alongside the right of way in order to construct a counterbalance designed to shore up the unstable slope. Plaintiff occupied the necessary parcel, built the counterbalance, and in November 1975, after construction was completed, instituted this eminent domain proceeding. Defendants answered and alleged, in addition to claims for compensation for the land taken, deunages to their cattle operation, primarily the loss of calves, as "special damages.” At trial the jury awarded defendants $1,500 for special deunages to livestock during 1974 caused by the construction of the counterbalance. A preliminary question is presented by defendants’ contention that plaintiff has waived the error, if any, assigned on appeal, citing Arney, Gohn v. City of North Bend, 218 Or 471, 344 P2d 924 (1959). Arney holds that a party may not assign as error on appeal a preliminary order denying a motion to strike where the moving party did not preserve the claimed error by calling it to the trial court’s attention "so as to give to the trial court adequate opportunity to correct the error before the case is submitted to the jury.” 218 Or at 475-76. Depending on the case, the preservation of the error may require objections to evidence offered in support of the allegation, a request that the allegation be withdrawn from the jury, and objections to jury instructions. The record before us is not complete and does not indicate that plaintiff took any steps to preserve the claimed error after filing its reply. Plaintiff does not contend that it did so. The rule laid down in Arney is designed to obviate an unnecessary retrial of a case where the motion to strike should have been granted, and might have been remedied by bringing the error to the attention of the trial judge. This is particularly true where the trial judge is not the judge who ruled on the preliminary motion — it is the former’s ultimate responsibility to [417] rule on such matters. Highway Comm. v. Superbilt Mfg. Co., 204 Or 393, 281 P2d 707 (1955). We adhere to that rule. In this case, however, the jury returned a special verdict segregating the various items of damage, so that if we were to decide that the questioned damages were not recoverable in this preceding, we could reverse that portion of the judgment based on the corresponding portion of the special verdict. No retrial would be necessary, no prejudice would result to the parties, and the ends of judicial economy would not be frustrated. We hold, therefore, that plaintiff’s failure to preserve the claimed error in this case does not preclude our review. On the merits, defendants’ theory is that plaintiff took possession of the property, being defendants’ feedlot, in the dead of winter and without sufficient notice to permit defendants to move their cattle to an adequate alternative site, and the resultant loss of calves, etc., amounted to a taking of their property for which they are entitled to compensation. While the pleading may fall short of articulating this theory, plaintiff did not move against it on this ground; further, after plaintiff’s motion was denied, it filed a reply setting up an affirmative defense alleging adequate notice to defendants of plaintiff’s need for, and intention to take, the additional land to construct a counterbalance. The case was tried and submitted on the issues so framed, and plaintiff may not raise the adequacy of the pleading for the first time on appeal. Defendants argue that the trial judge did not err in overruling plaintiff’s motion to strike; that defendants are entitled to recover these special damages, relying chiefly on La Grande v. Rumelhart et al., 118 Or 166, 246 P 707 (1926). The general rule regarding recovery of damages for injury to personal property is stated in 4A P. Nichols, Eminent Domain 14-294, § 14.2471[2] (rev 3d ed 1976), as follows: [418] "It has been held in the majority of states that the owner is not entitled to recover the cost of removing personal property or damages for injury to such property resulting from its removal, since such loss is not a taking of property. * * *” Similarly, in 1 L. Orgel on Valuation under The Law of Eminent Domain 306, § 69 (1953), it is stated: "The weight of authority is in support of the ruling which denies compensation to the owner for removal costs and breakages or other injury to personal property. * * In La Grande v. Rumelhart et al., supra at 174, the court said that "all elements of damage directly flowing from the appropriation and the construction of the improvement should be determined.” It is important to point out, however, that Rumelhart did not hold that the property owner was entitled to damages for injury to unattached personal property. Some 30 years after Rumelhart the court in Highway Comm. v. Superhilt Mfg. Co., supra, refused to allow as damages the cost of disassembling, packing, crating and moving defendants’ unattached personal property and reinstalling it in a new location. This is the leading case in Oregon on the limits of the recovery of consequential damages in condemnation cases. As the state correctly points out in its brief in the instant case, there is no provision in either the Oregon Constitution or state law authorizing compensation for consequential damages to personal property. The Attorney General argues that therefore none should be allowed here. We agree. Those courts in other jurisdictions that have allowed recovery for damages resulting from relocation of personal property have done so pursuant to either constitutional or statutory provisions requiring compensation for property "taken or damaged” for public use. See, 2 P. Nichols, Eminent Domain 5-438, § 5.84 (rev 3d ed 1976). We do not read Rumelhart to mean that damages resulting from the relocation of unattached personal [419] property are compensable as special damages in an eminent domain proceeding. The damages involved in Rumelhart were not consequential but were directly and physically against the property. Defendants’ damages are actually personal to defendants and more analogous to the loss of profits which were rejected by the Supreme Court in State Highway Com. v. Vella, 213 Or 386, 323 P2d 941 (1958), and most recently by this court in Berman Corp. v. State Hwy. Comm., 24 Or App 813, 547 P2d 192, rev den (1976). In Berman plaintiff sought compensation on account of temporary interference with public access to its service station, with alleged resultant loss of profits by the station operator. We pointed out in Bermanihat this was not a "taking” within the meaning of the state constitutional provision that private property shall not be taken for public use without just compensation. Or Const. Art I, § 18. Further, we see an important distinction between allowing compensation for the taking of the property owner’s oysters in Coos Bay Oyster Coop. v. Highway Com., 219 Or 588, 348 P2d 39 (1959), and the alleged injury to defendants’ livestock. In Coos Bay there was an actual taking of the owner’s oysters. In the instant case there was no such taking. The case at bar is much closer to Superbilt, where, as previously noted, our Supreme Court held that the cost of packing, crating and moving defendants’ personal property to a new location was not recoverable, and Berman, discussed above, since here the crux of defendants’ claim was for loss of profits to their cattle operation. In the light of the above authorities, we conclude that defendants were not entitled to recover the damages alleged to have been sustained by their livestock, and that the award therefor must be set aside. It follows that the award for attorney fees must also be vacated. Affirmed as modified.