Dunn v. City of Milwaukie

No. 28 May 8, 2014 339

IN THE SUPREME COURT OF THE

STATE OF OREGON

Sharon DUNN,

Respondent on Review,

v.

CITY OF MILWAUKIE,

an Oregon municipality,

Petitioner on Review.

(CV07040247; CA A139386; SC S059316)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 10, 2011; resubmitted

January 7, 2013.

Michael A. Lehner, Lehner & Rodrigues PC, Portland,

argued the cause and filed the brief for petitioner on review.

Kenneth P. Dobson, Chenoweth Law Group, PC, Portland,

argued the cause and filed the brief for respondent on review

and filed the response to the League of Oregon Cities’ amicus

curie brief.

Terence L. Thatcher, Senior Deputy City Attorney,

Portland City Attorney’s Office, Portland, filed a brief on

behalf of amicus curiae League of Oregon Cities.

LINDER, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to that court for further proceedings.

______________

*  On appeal from Clackamas County Circuit Court, Eve L. Miller, Judge. 241

Or App 95, 250 P3d 7 (2011).

340 Dunn v. City of Milwaukie

The city moved for directed verdict in this inverse condemnation case, argu-

ing that plaintiff’s evidence did not establish a compensable taking of property for

purposes of Article I, section 18, of the Oregon Constitution, because plaintiff had

failed to prove that the city intended to take her property. The trial court denied

the motion, and the jury found in favor of plaintiff. On appeal, the city argued

that, to prove that the city had acted intentionally, plaintiff must show that the

city took the actions that it did knowing that the sewage backup onto plaintiff’s

property was “substantially certain” to occur. The Court of Appeals affirmed.

Held: A factfinder is entitled to infer the requisite intent to take property if the

invasion to the property owner’s interests was “the natural and ordinary con-

sequence” of the government’s intentional acts. To meet that legal standard, a

plaintiff must show that the government undertook its actions intentionally and

that the necessary, certain, or inevitable result of those actions, in the ordinary

course of events, was the invasion of the plaintiff’s property that is the basis for

the plaintiff’s inverse condemnation claim. Because there was no evidence that

the sewage backup into plaintiff’s house was the necessary, certain, or inevita-

ble result of the actions in cleaning the sewer lines adjacent to plaintiff’s house

with highly pressurized water, the evidence was insufficient to support plaintiff’s

inverse condemnation claim.

The decision of the Court of Appeals is reversed, and the case is remanded to

that court for further proceedings.

Cite as 355 Or 339 (2014) 341

LINDER, J.

The City of Milwaukie (the city) used highly pres-

surized water to clean the sewer lines adjacent to plaintiff’s

house, causing sewage to back up through toilets and bath-

room fixtures. Plaintiff brought this action against the city

seeking compensation for the damage to her home on two

theories—negligence and inverse condemnation. The trial

court dismissed the negligence claim before trial as barred

by the statute of limitations. See ORS 30.275 (requiring

notice of tort claim against public body to be given within

180 days of injury). The inverse condemnation claim went

to trial before a jury. At the close of plaintiff’s case, the city

moved for a directed verdict, arguing that the evidence

did not establish a compensable taking of property under

Article I, section 18, of the Oregon Constitution.1 The trial

court denied the city’s motion, and the jury found for plain-

tiff, awarding $58,333 in damages. On appeal, the Court of

Appeals affirmed. Dunn v. City of Milwaukie, 241 Or App

95, 102, 250 P3d 7 (2011). We allowed the city’s petition for

review to consider whether a backup of sewage water into a

house and the resulting damage, as happened here in the

course of maintenance and cleaning of the city’s sewage sys-

tem, amounts to a compensable taking of property. As we

will explain, on the facts before us, we conclude that the

city’s actions did not give rise to a compensable taking. We

therefore reverse the decision of the Court of Appeals.

BACKGROUND

On review, we state the facts in the light most

favorable to plaintiff.2 As part of its maintenance of the

city sewer system, the city regularly uses highly pressured

water—a process called “hydrocleaning”—to clean the city’s

sewer lines. The hydrocleaning process permits the city,

after the cleaning, to use a video camera to inspect the

lines for breaks and repairs needed as part of preventative

maintenance. Hydrocleaning can cause water in the sewer

1

Article I, section 18, provides, in part: “Private property shall not be taken

for public use * * * without just compensation[.]”

2

See Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984) (after

denial of motion for directed verdict, reviewing court considers evidence and all

inferences it supports in light most favorable to prevailing party).

342 Dunn v. City of Milwaukie

lines to backflow through the lateral lines that run from

the main sewer line into adjacent houses and then possibly

backup through the toilets or other fixtures in the house. If

a backup into a house occurs, the city designates the area

involved on a map as a “low-pressure” area. That designa-

tion lets workers know to use reduced water pressure for

future hydrocleaning in that area to prevent another water

invasion. Plaintiff’s house was not in an area marked for

low pressure cleaning as of August 2005, when this backup

occurred (although the area has since been so designated).

As a result, the two city employees cleaning the sewer in the

vicinity of plaintiff’s house used the higher pressure that is

routine for the hydrocleaning process.

Plaintiff first became aware of a backup when she

heard a “loud roar,” felt her house shake, and then saw

“brown and gray gunky sewer water that stunk” come out

of her toilets and bathroom fixtures. Soon afterwards, water

was dripping from her bathroom ceiling and was three to four

inches deep on the bathroom floor, flowing down the hallway

and into her living room. Plaintiff went out and approached

a woman standing near a city truck outside her house. The

worker seemed “shocked” that sewer water was coming into

plaintiff’s house and offered her towels. Plaintiff cleaned the

house herself with towels and a wet/dry vacuum. As far as

the record shows, plaintiff did not vacate the house or other-

wise have to interrupt her occupation of it.

About six or seven months after the sewage water

backup, plaintiff began to notice that her wood floor felt

clammy (and eventually began to buckle), her wallpaper

began to peel, and at times she smelled a sewage-like scent.

Over the next two months, plaintiff hired several people to

inspect her home for water and microbial damage and to pro-

vide repair estimates. About 10 months after the incident,

plaintiff filed a formal complaint with the city. More inspec-

tions and repair estimates followed, and, ultimately, about

20 months after the incident, plaintiff brought this action

against the city for negligence and inverse condemnation.

At trial, no witness could explain why the sewage

backed up into plaintiff’s house when it did. Plaintiff’s house

had been built in 1976, and plaintiff had lived in it since

Cite as 355 Or 339 (2014) 343

1984. There is no evidence that, before this incident, sew-

age had backed up into plaintiff’s house or into any other

house in the near vicinity as a result of the city’s sewer

maintenance activities. The two city workers who were

hydrocleaning the sewers near plaintiff’s house when the

backup occurred explained that they did everything “by the

book” and that their equipment was “operating properly”

that day. They did not know why the sewer water backed up

into plaintiff’s house when it did. They could say only that

backups into a house can occur for reasons relating to the

vents in that house’s plumbing and the design of the lat-

eral lines running from the main sewer line to the house.3 A

plumber who inspected plaintiff’s house at some point after

the backup found nothing out of the ordinary in the plumb-

ing system itself, however. According to him, backups some-

times occur if the hydrocleaning cannot clear a blockage in

the main line, which can cause sewage water in the main

line to backup into a lateral line running to a nearby house.

But he could not say why one area, and not another, might

be prone to such backups.

By all accounts, however, sewage backups into adja-

cent homes during city hydrocleaning are rare. One of the

two workers hydrocleaning near plaintiff’s house when the

backup occurred had worked for the city for about seven

years. The backup into plaintiff’s house was the only one

that he had personally experienced, although a few years

later he heard of one other. The plumber who inspected

plaintiff’s house was generally aware of other sewer backups

such as the one into plaintiff’s house, and he characterized

them as “uncommon.”

The sewage water that backed up into plaintiff’s

house caused damage to the wood floors, crawl space, and

furnace. The estimated cost to repair that damage was

3

City workers explained that, for example, if the plumbing vents in a house

are plugged, air that builds up as the lines are cleaned may have nowhere to

escape other than through the toilets or other fixtures of that house. The design

of the lateral lines running to a home from the main sewer also can be a factor.

If the lines are particularly short, air pushed through the line from the cleaning

process may not dissipate, which can cause a backup through a house’s toilet.

Similarly, a backup can result if the lateral line is lower than the main line,

which makes it easier for the water to backflow into the house.

344 Dunn v. City of Milwaukie

$57,905.83, plus another “couple thousand” to replace the

vapor barrier and insulation in the crawlspace, and $8,000

for ruined carpets.4

As earlier noted, at the close of plaintiff’s case, the

city moved for a directed verdict, arguing that plaintiff’s evi-

dence did not establish a compensable taking of property for

purposes of Article I, section 18, of the Oregon Constitution.

The city argued in particular that, to prove a compensa-

ble taking, plaintiff had to demonstrate that the city had

acted intentionally, which required evidence that the city

took the actions that it did knowing that the invasion of

plaintiff’s property was “substantially certain” to occur or

was otherwise a “normal consequence” of the city’s actions.

Plaintiff, in response, argued that she had to show only that

the backup into her house was the “natural and ordinary

consequence” of the city’s actions and that where, as here,

there was no evidence of any other causes, the evidence was

sufficient to go to the jury.5 The trial court denied the motion

for directed verdict. The jury found in favor of plaintiff and

awarded plaintiff $58,333 in compensation.

The city appealed, challenging, among other issues,

the denial of its motion for directed verdict. In support of

their respective positions, the parties effectively renewed

the arguments that they had advanced to the trial court.

Relying on this court’s decision in Vokoun v. City of Lake

Oswego, 335 Or 19, 56 P3d 396 (2002), the Court of Appeals

affirmed. It agreed with the city that intent was a necessary

4

The city vigorously disputed plaintiff’s evidence of what damage could

be traced to the sewage water backup in August 2005 and the value of certain

items (such as the carpets). The city also vigorously disputed whether, as plain-

tiff’s expert appraiser testified, the sewer water backup created a stigma that

decreased the market value of the property by $100,000. The damages awarded

by the jury tracked closely with the repair and replacement damages that plain-

tiff presented, except for the value that plaintiff placed on her carpets; the jury

did not award plaintiff damages in an amount comparable to plaintiff’s claimed

loss of market value. Consistently with our standard of review, therefore, we

describe the evidence in the light most favorable to plaintiff’s favorable jury ver-

dict, but that description, in this case, does not include market value loss.

5

The city also argued that the damage to plaintiff’s house was not a suffi-

ciently substantial interference with her property rights to constitute a “taking.”

The trial court concluded that the evidence presented a jury question on that

point, as did the Court of Appeals. Dunn, 241 Or App at 103. The city continues

to make that argument on review. Because our conclusion on the city’s intent

argument is dispositive, we do not reach that aspect of the city’s argument.

Cite as 355 Or 339 (2014) 345

element of plaintiff’s claim, but reasoned that the jury

reasonably could infer the city’s intent to cause the sewer

backup if the backup was “a natural and ordinary conse-

quence” of the city’s sewer cleaning:

“The question is not whether the harmful result occurs fre-

quently; it is whether the result is a natural and ordinary

consequence of the government’s action at the time and

place where that action occurred. * * * [A] consequence that

was the last link in a chain of events that began with the

governmental action and proceeded, without unnatural or

extraordinary intervening causes, to produce the damage.”

Dunn, 241 Or App at 102 (emphasis omitted). The court con-

cluded that the jury could infer the city’s intent from evi-

dence that the city had carried out the cleaning according

to normal procedures and that doing so in some areas of the

city can cause sewer backups in private houses. Id.

We allowed the city’s petition for review. Mindful

that the Court of Appeals was applying what it understood

to be the “natural and ordinary consequences” test reaf-

firmed by this court in Vokoun, the city, along with amicus

curiae League of Oregon Cities, argues for a modification

of—or at least, a clarification of—that test. Specifically,

the city asserts that intent should be inferable only from

evidence that an invasion of plaintiff’s property interests

was “substantially certain” to occur as a result of the gov-

ernment conduct. The city also argues that, regardless of

whether this court modifies the test from Vokoun, proof of

intent requires some evidence that the intended result was

expected. The city concludes that plaintiff offered insuffi-

cient evidence of its intent to survive a motion for directed

verdict because there was no testimony or other evidence

at trial that “the [c]ity expected water to enter plaintiff’s

home.”

Plaintiff disagrees that the “natural and ordinary

consequences” test requires modification or refinement.6 In

6

Plaintiff argues fleetingly that the city did not preserve its argument

because it did not urge the trial court or the Court of Appeals to modify or refine

the “natural and ordinary consequences” test that Vokoun reaffirmed. The city,

however, made the same arguments that it makes now about what Vokoun’s test,

correctly understood, requires of a plaintiff’s evidence. To preserve its position,

346 Dunn v. City of Milwaukie

plaintiff’s view, that test effectively serves what plaintiff

sees as its primary purpose: to distinguish between govern-

mental negligence and intentional takings. Plaintiff asserts

that she sufficiently proved the city’s intent by showing that

the flooding of her house was the direct result of the city’s

purposeful act of hydrocleaning. It does not matter, plaintiff

urges, that sewers regularly are hydrocleaned without caus-

ing water to back up into nearby homes. Plaintiff empha-

sizes that there was no evidence that the city acted negli-

gently (i.e., failed to exercise reasonable care). According to

plaintiff, “[i]n the absence of any unnatural or extraordi-

nary intervening events, such as negligence on the [c]ity’s

part[  the jury had ample evidence that the flood of sewer

],

water was the natural and ordinary consequence of blasting

high pressure water in this particular area.”

So framed, this case calls on this court to examine

what “intent” means in the context of a takings claim and,

concomitantly, the nature and quality of evidence that will

support an inference that the government acted with the

requisite intent. To resolve that issue, we begin with the

principles that guide our analysis of takings claims gener-

ally. We then turn to the “intent” element of plaintiff’s claim

and what was required of plaintiff’s proof to satisfy that

element.

GENERAL PRINCIPLES

A “taking” of property is a shorthand description for

an exercise of the government’s power of eminent domain,

which is the power of the sovereign to take property for

“public use” without the property owner’s consent. Coast

Range Conifers v. Board of Forestry, 339 Or 136, 142-43, 117

P3d 990 (2005) (discussing the term “taking”); 1 Nichols on

Eminent Domain § 1.11, 1-7 (Julius L. Sackman ed., 3d ed

2013) (describing power of eminent domain generally). The

power of eminent domain requires no grant of authority for

its exercise, but instead is an inherent attribute of sover-

eignty. Tomasek v. Oregon Highway Com’n, 196 Or 120, 142,

the city did not have to make a futile request that the trial court or the Court of

Appeals modify or refine the test from Vokoun to avoid its misapplication or mis-

interpretation, as the city urges happened in this case. That argument is more

appropriately directed to this court.

Cite as 355 Or 339 (2014) 347

248 P2d 703 (1952); 1 Nichols on Eminent Domain § 1.11 at

1-7. Thus, Article I, section 18, is not the source of the state’s

eminent domain power. Tomasek, 196 Or at 142-43. Instead,

by declaring that “[p]rivate property shall not be taken

for public use *  * without just compensation[,]” it states a

*

familiar limitation on the state’s power of eminent domain—

that, when the state takes property, it must pay for it. See id.

at 143 (Article I, section 18, is protection for property owner

rather than source of eminent domain authority).

Typically, government exercises its eminent domain

power by initiating a condemnation proceeding and, through

that proceeding, compensating a property owner before

appropriating property for a public purpose. See Cereghino

et al v. State Highway Com., 230 Or 439, 443-44, 370 P2d

694 (1962) (so stating). But the power of eminent domain

can be exercised de facto as well as de jure, which occurs

when the government takes property interests through

its actions without first initiating condemnation proceed-

ings. When that happens, the property owner can bring an

inverse condemnation action to obtain the just compensation

that Article I, section 18, guarantees. Id. at 444.

Consistently with the idea that the takings clause

is not the source of the state’s power to take property, but

instead requires compensation for property taken, Article I,

section 18, itself does little to inform the understanding of

when a government action constitutes a compensable tak-

ing. The most that can be said is that there must be an

“appropriation of private property” for a public purpose that

is characteristic of an exercise of eminent domain authority.

See generally Coast Range Conifers, 339 Or at 143 (“take”

implies that governmental acts resulting in “the appro-

priation of private property for public use” will constitute

a compensable taking). In other words, the intrusion on

private property interests must be confiscatory in nature.

Beyond that, drawing on conventional principles, our cases

have established that the concept of a compensable taking

is not limited to real property; it includes personal property

as well, at least when that property is permanently taken.

Hawkins v. City of La Grande, 315 Or 57, 69-70, 843 P2d

400 (1992). Nor is the concept limited to the physical or

tangible property itself; it encompasses as well the owner’s

348 Dunn v. City of Milwaukie

fundamental legal interests in property, such as the right

to possess, use, and dispose of property. See Cereghino, 230

Or at 445 (citing authorities). But whether the invasion is to

real property or personal property, and to the physical prop-

erty or the intangible but essential rights of ownership in

it, the one principle that holds true is that the government’s

conduct must be “tantamount to a public appropriation” of

property, both in nature and in degree. See generally Coast

Range Conifers, 339 Or at 147 (discussing various tests and

observing that, under them, government act must be “tanta-

mount to a public appropriation of private property”).

The vexing problem over time has been distin-

guishing between intrusions that amount to a taking and

those that do not. In our state constitutional jurisprudence,

no single or uniform legal test has emerged. Id. at 146-47.

Instead, this court has distinguished among takings claims

depending on the nature of the governmental action that

gives rise to the claim. Id. at 146. Thus, for example, the

court has consistently found a taking when government has

intentionally authorized a physical occupation of private

property that substantially has interfered with the owner’s

rights of exclusive possession and use. See, e.g., Vokoun, 335

Or at 31 (applying that test to claim based on governmental

diversion of storm water onto private property); Morrison v.

Clackamas County, 141 Or 564, 568-69, 18 P2d 814 (1933)

(same). On the other hand, when governmental regulation,

rather than physical occupation, restricts a property owner’s

right of possession, enjoyment, and use, the test is whether

the property retains some economically viable or substan-

tial beneficial use. See, e.g., Boise Cascade Corp. v. Board

of Forestry, 325 Or 185, 198, 935 P2d 411 (1997) (apply-

ing some economically viable use test to regulatory taking

claim); Dodd v. Hood River County, 317 Or 172, 182, 855 P2d

608 (1993) (applying some substantial beneficial use test to

regulatory taking claim).

There likewise has developed no uniform or single

test under the federal takings clause,7 on which Article I,

section 18, was modeled. Coast Range Conifers, 339 Or at

7

The Fifth Amendment to the United States Constitution, as relevant here,

provides, “[N]or shall private property be taken for public use, without just

compensation.”

Cite as 355 Or 339 (2014) 349

144 (discussing federal roots of Article I, section 18). The

United States Supreme Court has recognized that there is

a nearly infinite variety of ways that government action or

regulation can affect property interests. Arkansas Game and

Fish Com’n v. U.S., ___ US ___, 133 S Ct 511, 518, 184 L Ed

2d 417 (2012). Because of that, no “magic formula” has been

identified to enable federal courts to determine, in every

variety of case, whether a given interference with property

is a taking. Id. Only a few bright lines have developed, for

purposes of the federal takings analysis. One is that a per-

manent physical occupation of property authorized by gov-

ernment for a public purpose is a taking. Id. (citing Loretto

v. Teleprompter Manhattan CATV Corp., 458 US 419, 426,

102 S Ct 3164, 73 L Ed 2d 868 (1982)). Likewise, a regula-

tion that permanently divests a property owner of all eco-

nomically beneficial use of land is a taking. Id. (citing Lucas

v. South Carolina Coastal Council, 505 US 1003, 1019, 112

S Ct 2886, 120 L Ed 2d 798 (1992)). For claims that do not

fall within those bright line categories, however, the federal

analysis depends on “situation-specific” factual inquiries.

INTENT AS AN ELEMENT OF A TAKINGS CLAIM

With those general principles as a backdrop, we

turn to the issue that this case presents: the role of intent in

analyzing whether government action has de facto given rise

to a compensable takings claim. As noted, under our state

case law, the intentional physical occupation or invasion

of property by government for a public purpose generally

amounts to a taking, if there is a substantial interference

with the property owner’s protected interests. Vokoun, 335

Or at 26; Morrison, 141 Or at 568-69.8 The parties agree in

8

We emphasize, as Coast Range Conifers held, that there is no unitary test

for takings claims, and the test varies with the nature of the claim. 339 Or at 146-

47. We concern ourselves in this case only with a physical invasion of property,

one that results in damage to that property. As Coast Range Conifers observed,

this court consistently has held intent to be an element of such a takings claim.

Id. at 146. Our analysis therefore is confined to that context and does not neces-

sarily extend to other forms of takings claims, such as those based on regulation

or planning (e.g., Dodd, 317 Or at 181; Fifth Avenue Corp. v. Washington Co., 282

Or 591, 608-14 (1978)); nuisance (e.g., Thornburg v. Port of Portland, 233 Or 178,

180, 376 P2d 100 (1963); Lincoln Loan v. State Hwy. Comm., 274 Or 49, 55, 545

P2d 105 (1976)); or cases involving physical occupations of a kind that amount to

an ongoing easement (e.g., Cereghino, 230 Or at 446).

350 Dunn v. City of Milwaukie

this case that, to prevail on her inverse condemnation claim,

plaintiff must prove that the government acted intention-

ally. The parties further agree that intent can be inferred

from the circumstances, as our cases also hold. Vokoun, 335

Or at 29. The dispute in this case centers on what intent

entails in this context, and the nature and quality of the

evidence that will thus suffice to prove intent. Although our

past cases have not explored that issue directly, they provide

significant guidance, as do the general principles underly-

ing Article I, section 18.

This court first articulated intent as an element of

a takings claim in Gearin v. Marion County, 110 Or 390,

402, 223 P 929 (1924). There, according to the plaintiff’s

complaint, an unusual flood caused the Willamette River to

overflow its banks and cover a large portion of the plaintiff’s

land to a depth of about eight feet. The same flooding condi-

tions caused logs, trees, stumps, and other debris to collect

around the piers on a bridge over the river, which threatened

to wash out the bridge. County employees cleared the debris

and, in doing so, moved it to a place where it floated across

the plaintiff’s property, instead of into the main channel of

the river. The debris, in turn, caused damage and destruc-

tion to buildings, and to the contents of the buildings, on the

plaintiff’s land. Id. at 392-93. Without extensive analysis,

this court rejected the plaintiff’s takings claim because the

county’s actions in clearing the debris “were done without

any intention to exercise the power of eminent domain or to

take [the] plaintiff’s property or any part thereof for a pub-

lic use[.]” Id. at 402. Instead, the claim sounded “purely in

tort.” Id. at 401.

Nine years later, in Morrison, this court adhered to

the idea that, to be a taking, a physical occupation of private

land by the government had to be intentional, but unlike in

Gearin, found the pleadings sufficient to allege the required

intent. In Morrison, Clackamas County had built a jetty

that directed a portion of the Sandy River toward the plain-

tiff’s property. During the next annual high water, the jetty

diverted the river’s flow over the plaintiff’s property, destroy-

ing the surface of the land as well as the improvements on

it. Morrison, 141 Or at 566-67. The court rejected the idea

Cite as 355 Or 339 (2014) 351

that the intent required for a taking was “specific intention

on the part of [the] defendant to appropriate [the] plaintiff’s

property[.]” Id. at 569. Instead, the court declared, a gov-

ernmental actor can “be held to have intended to do those

things which are the natural and ordinary consequences of

[its] act.” Id. Morrison thus was the source of the “natural

and ordinary consequences” test at issue in this case.

Morrison did not discuss the contours of that test

explicitly. But the sources from which the court drew, as well

as the court’s application of the test to the case before it, sug-

gest that that test expressed a distinctive concept: Natural

and ordinary consequences were those that were the neces-

sary or certain result of the government’s authorized acts.

Morrison described the complaint, for example, as having

alleged that “the natural and necessary effect” of the con-

struction of the jetty was to alter the flow of the river in

such a way as to force its full flow “immediately toward and

against [the] plaintiff’s land.” Id. at 566 (emphasis added).

“Natural and ordinary” consequences, as the court used

those terms, did not mean simply effects or consequences

that could possibly or plausibly follow; they were ones that

ordinarily would follow, as a matter of course and with an

element of certainty. Immediately after declaring that the

government could be held to intend the natural and ordi-

nary consequences of its acts, the court captured that idea

again by observing of the alleged facts before it: “Doubtless

the defendant county intended to construct the jetty. The

natural consequence, of course, followed.” Id. at 569 (empha-

sis added). Two cases cited by the court in support of its

approach similarly emphasized that, where a government

action results in a physical invasion of property, a taking

arises only if the injurious invasion was the necessary, inev-

itable, or otherwise certain consequence of the government’s

intentional act. See Miller v. City of Morristown, 47 NJ Eq

62, 66-67, 20 A 61, 63 (1890) (for purposes of takings claim,

government can be held to have intended the natural “and

inevitable” consequences of its acts); Great Northern Ry.

Co. v. State, 102 Wash 348, 356, 173 P 40, 43 (1918) (taking

arises where damage is “necessary” result of government

activity and cannot be avoided).

352 Dunn v. City of Milwaukie

The intent element of a takings claim did not sur-

face again as a significant issue in any of this court’s cases

again until Vokoun, which this court decided nearly 80 years

after Morrison first articulated the “natural and ordinary

consequences” test.9 In Vokoun, the City of Lake Oswego

had constructed a storm drain that ran underground near

the plaintiffs’ property and released water into a ravine at

the base of the hillside on which the plaintiffs’ house sat.

Vokoun, 335 Or at 21-22. During the 25 years that followed,

the storm drain created a drainage course in the ravine and

undermined the hillside, ultimately causing a landslide that

destroyed much of the plaintiffs’ property. Id. at 30. The trial

court denied the city’s motion for directed verdict, and the

Court of Appeals reversed, concluding that plaintiffs’ inverse

condemnation action was predicated on the city’s negligence,

which was insufficient to establish a takings claim. Id. at

24-25. On review to this court, the plaintiffs argued that

the City of Lake Oswego should be liable for the damage

to their property, regardless of whether the consequences of

constructing the storm drain were expected or intended. Id.

at 26.

This court reaffirmed that negligence alone will not

support a claim for inverse condemnation and that intent

to take is an element of such a claim. Id. at 27. In doing

so, the court reiterated Morrison’s observation that specific

intent is not required and that the government can be held

9

The principal cases touching on the intent element of a takings claim

between the time that Morrison and Vokoun were decided were Tomasek, 196

Or 120, and Hawkins, 315 Or 57. Neither provides any particular guidance here.

In Tomasek, the principal issue was whether the state was immune from suit on

an inverse condemnation theory. 196 Or at 140. The court recited and quoted

at length from prior cases involving takings claims, including Morrison and its

statements on the element of intent. Id. at 142-51. The court did so, however, only

in the course of analyzing whether the state was amenable to suit on an inverse

condemnation theory. Although the defendant disputed the sufficiency of the evi-

dence to support a takings claim, the defendant’s challenge focused on whether

natural causes, as opposed to the government’s construction of a bridge and relo-

cation and grading of a highway, were the cause-in-fact of the injury to the plain-

tiff’s property. Id. at 139-40. The adequacy of the plaintiff’s proof of intent was

not an issue. In Hawkins, it was undisputed that the city-defendant had released

sewage “intentionally” when storm conditions overran the capacity of its sewage

treatment facility. 315 Or at 60. Although Hawkins implicitly treated intent as an

element of the takings claim in that case, neither the nature and quality of the

evidence required to prove intent nor the legal adequacy of the evidence of intent

were issues on appeal.

Cite as 355 Or 339 (2014) 353

to have intended the natural and ordinary consequences of

its act. Id. at 28. The parties’ arguments did not directly

dispute the nature and quality of what a plaintiff should

be required to prove under that test. As a result, the court

did not explore that question. But the court implicitly rec-

ognized, as Morrison’s broader discussion had as well, that

the concept encompassed more than an indirect causal

connection between the government’s acts and the phys-

ical invasion of and damage to a plaintiff’s property. The

court began by discussing Morrison and its ordinary and

natural consequences test, observing that in Morrison the

court had found the complaint sufficient to state a claim

because the plaintiff had pleaded that the county in that

case had “intended to construct the jetty in a manner that

necessarily caused the flooding that destroyed the plaintiff’s

property[.]” Id. The court then cited Levene et ux v. City of

Salem, 191 Or 182, 196-97, 229 P2d 255 (1951), noting that

it was in accord with Morrison, for the proposition that a

taking arises when government diverts the flow of a stream

or constructs a drain or sewer in such a way that flooding of

private property is “a necessary result” of the construction.

Vokoun, 335 Or at 28. And, in concluding that the plaintiffs’

evidence was sufficient to create a jury question on intent,

the court described the evidence as permitting the reason-

able inference that the landslide caused by water discharg-

ing from the storm pipe “was the natural and ordinary (even

inevitable) consequence” of the manner in which the city had

intentionally constructed the storm drain. Id. at 30 (empha-

sis added).10

10

Elsewhere in the opinion, Vokoun’s analysis may have been less exacting.

In describing the sufficiency of the evidence in that case, the court explained

that there was no dispute that the storm drain had caused erosion in the drain-

age channel. And although the parties disputed the cause of the landslide, the

evidence was that the hillside had been stable before the storm drain was built;

there had been no drainage course in the ravine before then; the resulting drain-

age was “consistent with the way that the drain had been designed and built;”

and there had been no intervening causes. Vokoun, 335 Or at 29-30. From that

evidence, the court concluded, a jury could infer that the landslide was “the nat-

ural and ordinary (even inevitable) consequence of the city’s construction of the

storm drain in that manner.” Id. at 30. To the extent that Vokoun can be read to

permit causation-in-fact alone to suffice, we disavow that understanding for the

reasons we explain in this opinion. If, however, Vokoun relied on the fact that the

landslide was the necessary or inevitable result of the manner in which the drain

had been constructed, then it is consistent with Morrison and other previously

decided cases, as well as with the test that we adopt in this case.

354 Dunn v. City of Milwaukie

As that description of the case law conveys, where

compensation is sought for injuries caused by physical inva-

sions or occupations of property, the intent element of a tak-

ings claim is fundamental in distinguishing between those

actions that are the equivalent of an exercise of eminent

domain and those that are actionable as ordinary torts. The

power of eminent domain is affirmative in nature. It is a

power exercised for a particular purpose—the public’s bene-

fit—and intentionally. The idea that the sovereign’s power of

eminent domain could be exercised through error, accident,

or inadvertence, is at odds with the nature of the power

itself. Inadvertent and unintended acts give rise to liabil-

ity, if at all, as ordinary torts, not takings. As the Seventh

Circuit Court of Appeals has pointedly put it:

“So when does error ‘take’ property? Suppose agents of

the FBI, while chasing a kidnapper, demolish someone’s

car, or suppose a postal van runs over a child’s tricycle.

Do these accidents ‘take’ the car and tricycle? Certainly

they are casualties of the operation of government. *  * *

Accidental, unintended injuries inflicted by governmental

actors are treated as torts, not takings. And torts are com-

pensable only to the extent the Federal Tort Claims Act

permits. The Court has never treated limitations on lia-

bility in tort as mere pleading obstacles, to be surmounted

by shifting ground to [a takings claim brought under] the

Tucker Act.”

Chicago, Milwaukee, St. Paul and Pacific R. Co. v. U.S., 799

F2d 317, 325-26 (7th Cir 1986), cert den, 481 US 1068 (1987).

Intent, as an element of a takings claim based on a physi-

cal intrusion or occupation of property, serves the important

function of helping to distinguish between acts that are tan-

tamount to appropriations of private property for a public

purpose and those for which a remedy lies only in tort.11

11

Some courts have expanded “takings” law to reach government negligence,

often “to circumvent the traditional immunity of governmental bodies from lia-

bility for tort[.]” A. W. Gans, Damage to Private Property Caused By Negligence

of Governmental Agents as “Taking,” “Damage,” or “Use” for Public Purposes, in

Constitutional Sense, 2 ALR 2d 677, 680 (1948), see generally id. at 681-87 (can-

vassing case law). Other jurisdictions have a more expansive test for government

takings, because the takings clauses of their constitutional provisions expressly

require compensation for government actions that “damage” private property as

well as those that “take” private property. See Moeller et ux v. Multnomah County,

218 Or 413, 425-27, 345 P2d 813 (1959) (contrasting Oregon Constitution’s tak-

ings clause with those of states that include “damage” provisions, which has led

Cite as 355 Or 339 (2014) 355

THE NATURAL AND ORDINARY

CONSEQUENCES TEST

If the natural and ordinary consequences test

is understood as Morrison and later cases appear to have

meant it—that is, as permitting an inference of the requi-

site intent to take when the consequences of governmental

action are necessary, inevitable, or substantially certain

to result—the test serves well. But the test has the poten-

tial to be misunderstood as allowing intent to be inferred

based on simple causation alone. The Court of Appeals, in

fact, appears to have applied the test in that way in its opin-

ion in this case. The court began by phrasing the test as

one that looked to “a” natural and ordinary consequence,

rather than “the” natural and ordinary consequence, of the

government’s action. Dunn, 241 Or App at 102. The shift,

although subtle, conveys a different idea. Something that

is “the” natural and ordinary consequence implies that it

will follow with a degree of certainty. Something that is “a”

natural and ordinary consequence implies that it is one of

many possible consequences, so that it might or might not

follow from the government’s actions. That rephrasing by

the Court of Appeals led to an analysis that appears to allow

an inference of intent when the government’s act is simply a

but for cause of the invasion or damage to property:

“The question *  * is whether the result is a natural and

*

ordinary consequence of the government’s action at the

time and place where that action occurred. *  * a conse-

*

quence that was the last link in a chain of events that began

with the governmental action and proceeded, without

unnatural or extraordinary intervening causes, to produce

the damage.”

Id. (emphasis added). In other words, as long as the gov-

ernment’s actions were a cause-in-fact of the injury to

those states to extend compensation to a broader range of cases); see generally

Patterson v. Horsefly Irrigation Dist., 157 Or 1, 18, 69 P2d 282 (1937) (empha-

sizing that “unnecessary damage,” as often occurs from negligence, is at odds

with exercise of eminent domain power, which arises from necessity of taking

private property for public purpose). Oregon, however, has abrogated its sover-

eign immunity for torts and has no damage provision in its takings clause. Both

considerations are additional reasons to adhere to requiring intent as an element

of a takings claim in this context.

356 Dunn v. City of Milwaukie

plaintiff’s property, that was enough to render the conduct

“intentional.”12

That articulation and application of the natural

and ordinary consequences test is not faithful to what the

test was designed to convey. The phrase itself—natural and

ordinary consequences—imports a stronger relationship

between the government’s act and the result that follows. In

particular, it conveys that, in the ordinary course of events,

a certain act will naturally have a certain consequence.13

That consequence, because it is the natural one that will

ordinarily follow, is the necessary or inevitable result of

undertaking a particular act, unless some other force or

event comes into play to alter what will otherwise occur.

That is how Morrison understood and applied the phrase,

as we have explained. 141 Or at 566 (complaint adequately

alleged that natural and “necessary” effect of jetty construc-

tion was to alter flow of river across plaintiff’s land during

seasonal flooding). It is also consistent with the relationship

between the government’s act and the resulting injury to

property required by the cases that Morrison cited with

approval, which looked to whether the resulting injury was

the inevitable and necessary result of the government’s act

in the sense that it was sure to follow. Miller, 47 NJ Eq at

66-67, 20 A at 63; Great Northern Ry. Co., 102 Wash at 356,

12

We are not alone in reading the Court of Appeals opinion to have so trans-

formed the test. Others have described the Court of Appeals’ analysis in this

case as “a tort-like proximate cause test to determine whether there is a suffi-

cient causative link between the government action and the plaintiff’s harm.”

Jan G. Laitos and Teresa Helms Abel, The Role of Causation When Determining

the Proper Defendant in a Takings Lawsuit, 20 Wm & Mary Bill Rts J 1181, 1184

(2012).

13

Certainty or inevitability, in this context, does not require—at least not,

necessarily—regularity or frequency. If, in the ordinary course of events, particu-

lar circumstances are substantially certain to occur on a seasonal or other inter-

mittent basis (such as flooding), and if the government’s actions will necessarily

result in an invasion of a plaintiff’s property when those circumstances arise (as

with a bridge that will divert water onto a plaintiff’s land when flood waters rise

sufficiently), such a result can be found to be certain and inevitable for purposes

of a takings claim. Compare Ridge Line, Inc. v. U.S., 346 F3d 1346, 1356 (Fed Cir

2003) (repeated increased rain runoff caused by government development, even

though intermittent, an intentional taking if runoff was the “direct, natural, or

probable result” of development) with Thune v. U.S., 41 Fed Cl 49, 52-53 (1998)

(no intent to take could be inferred where deliberately set forest service burn

went out of control due either to negligence or unexpected and unforecast wind

change, damaging private property).

Cite as 355 Or 339 (2014) 357

173 P at 43. And, finally, a test that looks to the inevita-

bility or certainty with which particular results will follow

from particular government action appears consistent with

the way that the natural and ordinary consequences has

been understood by courts in general, and federal courts in

particular.14

We decline the city’s and amicus League of Oregon

Cities’ invitation to modify the test for intent in this context

by adopting the Restatement (Second) of Torts (1965) defi-

nition. Under the Restatement, a person acts intentionally

when “the actor desires to cause consequences of his act, or

* * * he believes that the consequences are substantially cer-

tain to result from it.” § 8 A. As the Restatement formulates

the test, intent requires either specific intent or a state of

mind that serves as a surrogate for specific intent (a person’s

subjective knowledge that particular consequences are “sub-

stantially certain” to result from the person’s act). Morrison

rejected specific intent as a requirement for a taking. 141 Or

at 569. Vokoun reaffirmed that aspect of Morrison. 335 Or at

28. Neither the city nor the amicus articulate a persuasive

reason for us to impose a specific intent requirement—or

something close to it—where we have not before.15

14

Morrison’s understanding of the certainty required of the test that it

embraced is consistent with how that test appears to have been used in other

cases during that same time period, particularly federal cases. Although the test

was sometimes termed the “natural and probable consequences” test, as well as

the “natural and ordinary consequences test,” both looked to the certainty with

which the consequences would follow government action. See, e.g., Jed Michael

Silversmith, Takings, Torts & Turmoil: Reviewing the Authority Requirement of

the Just Compensation Clause, 19 UCLA J Envtl L & Pol’y 359, 379-83 (2001)

(natural and probable consequences test, as used in Fifth Amendment cases for

more than 100 years, addresses certainty; destruction of a plaintiff’s property

could be ascertained to a certainty before the government engaged in its autho-

rized conduct).

15

Other jurisdictions with similar constitutional provisions have adopted

either the Restatement intent test or one akin to it in the inverse condemnation

context. See City of Dallas v. Jennings, 142 SW3d 310, 314 (Tex 2004) (government

is liable for inverse condemnation if it “knows that the specific property damage is

substantially certain to result from an authorized government action”); Electro-

Jet Tool Mfg. Co., Inc. v. City of Albuquerque, 114 NM 676, 683, 845 P2d 770,

777 (1992) (“acting with knowledge that the damage was substantially certain to

result from [government] conduct” gives rise to a takings claim); Robinson v. City

of Ashdown, 301 Ark 226, 231-32, 783 SW2d 53, 56 (1990) (government’s knowl-

edge that “an invasion of another’s interest in the use and enjoyment of land is

substantially certain to result” from its conduct results in an intentional act). But

in general, state tests for what constitutes a compensable taking are all over the

358 Dunn v. City of Milwaukie

But, contrary to plaintiff’s argument, the natural

and ordinary consequences test can benefit from clarifica-

tion. If, as happened in this case, it is understood as per-

mitting an inference of intent from “but for” causation, then

the test eliminates the requirement of intent altogether. So

transformed, the natural and ordinary consequences test

does not adequately distinguish between governmental neg-

ligence and intentional takings and does not serve the con-

stitutional principle at work.

The natural and ordinary consequences test, as

originally embraced in Morrison, conveys a sound concept,

and we adhere to it as clarified by our analysis in this case.

The test examines whether the government intentionally

undertook to act “in a manner that necessarily caused” the

injurious invasion of the plaintiff’s property. Vokoun, 335 Or

at 28 (citing Morrison, 141 Or at 569). A factfinder is entitled

to impute the requisite intent to take property if the inva-

sion to the property owner’s interests was the necessary,

substantially certain, or inevitable consequence of the gov-

ernment’s intentional acts. In other words, a plaintiff need

not prove that the governmental actor subjectively intended

the consequential invasion of property interests or under-

took action knowing (even if not desiring) that the conse-

quences would follow. Evidence of specific intent, although it

will suffice, is not required. And although a plaintiff’s bur-

den is less than specific intent would make it, it is still exact-

ing. A plaintiff still must show that the government inten-

tionally undertook its actions and that the inevitable result

of those actions, in the ordinary course of events, was the

invasion of the plaintiff’s property that is the basis for the

board, in part because state jurisprudence developed without any common-law

antecedents and independently of federal law, and because a state action has

traditionally been a prerequisite to pursuing a claim under federal law. See gen-

erally Jadd F. Masso, Mind the Gap: Expansion of Texas Governmental Immunity

Between Takings and Tort, 36 St. Mary’s L J 265, 270-72 (2005) (discussing devel-

opment of takings law in United States). States, in particular, vary significantly

in whether intent is required to prove a compensable taking and, if so, whether

specific intent or some other test of intent is required. Id. at 277-84 (discussing

state and federal case law); see also James S. Burling and Luke A. Wake, Takings

and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages,

in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51

(ALI-ABA Committee on Continuing Professional Education eds., 2011) (discuss-

ing state cases).

Cite as 355 Or 339 (2014) 359

plaintiff’s inverse condemnation claim. Thus, if a plaintiff’s

best evidence is that the invasion was a less than certain

consequence—such as a conceivable, possible, or plausible

outcome, or one that otherwise might or might not occur—

that is not enough for a factfinder to infer that the invasion

was intentional.

ANALYSIS OF THIS CASE

The remaining question is whether plaintiff’s evi-

dence in this case meets the natural and ordinary conse-

quences test as we have clarified it. Plaintiff argues that the

jury could infer the city’s intent to cause the sewage backup

in plaintiff’s house from evidence that the backup “was the

direct consequence of the [c]ity’s purposeful act of blasting

high-pressure water *  * into the sewer line adjacent to

*

[p]laintiff’s house.” Such an inference is particularly appro-

priate, plaintiff argues, because she never argued to the

jury or presented any testimony or evidence that the city

acted negligently by failing to exercise reasonable care in

cleaning the sewer lines to and around plaintiff’s house.

According to plaintiff, there was no evidence of “unnatural

or extraordinary intervening events” that caused the dam-

age to plaintiff’s property. On the contrary, asserts plain-

tiff, “everything was done ‘by the book.’ ” Plaintiff concludes

that, because there was no evidence that the city acted neg-

ligently, “there was sufficient evidence that the invasion of

sewer water was the natural and ordinary consequence of

the [c]ity’s actions and intent could therefore be inferred.”16

The fact that conduct is not negligent does not estab-

lish, however, that it is intentional. As classically conceived

in the law, intent is a state of mind. Prosser and Keeton on

the Law of Torts § 8, 34 (W. Page Keeton ed., 5th ed 1984).

Negligence, on the other hand, is conduct and not a state of

mind. Id. at § 31, 169. The “essence” of negligence is “behav-

ior which should be recognized as involving unreasonable

danger to others.” Id. As Prosser explains the tort concepts

of negligence and intent:

16

As earlier noted, plaintiff initially advanced a negligence claim as well, but

that claim was dismissed before trial. That procedural posture of the case leaves

plaintiff in the unusual position of having advanced a negligence claim while

simultaneously relying on the lack of evidence that the city acted negligently.

360 Dunn v. City of Milwaukie

“In negligence, the actor does not desire to bring about the

consequences which follow, nor does he know that they are

substantially certain to occur, or believe that they will.

There is merely a risk of such consequences, sufficiently

great to lead a reasonable person in his position to antici-

pate them, and to guard against them.”

Id. Thus, negligence and intent are not flip sides of the same

coin; they are different coins. For a person to act not negli-

gently does not establish how he did act or with what mental

state.17 The person could have acted with intent, but a range

of other possibilities exists as well, including the possibility

that what happened was purely accidental or inadvertent,

and not due either to negligence or intent.18

But more to the point, under the natural and ordi-

nary consequences test as we have clarified it, the issue in

this case turns on the certainty or inevitability that the

city’s act of hydrocleaning the sewer would cause the sew-

age backup into plaintiff’s home. Here, there is no dispute

that the city’s manner of hydrocleaning the sewer, using

high-pressure water, was intentional. The disputed issue

17

Of course, on this record, there is no evidence or jury determination that

the city was “not negligent.” There instead is simply a void left by the dismissal of

plaintiff’s negligence claim. Even if, however, this record established that the city

was “not negligent,” as plaintiff argues, the argument fails, as we have explained.

Classic logic provides a further explanation for why it fails. Plaintiff’s argument

suffers from the “fallacy of negative premises.” Judge Ruggero J. Aldisert dis-

cusses the fallacy in his book Logic for Lawyers: A Guide to Clear Legal Thinking

156 (3d ed 1997), explaining that, when two premises of a syllogism are negative,

“we cannot determine anything regarding their relationship to one another.” By

way of example, Judge Aldisert points out that, “[f]rom the premises, James is

not a lawyer; lawyers are not steelworkers, we cannot conclude that James is or is

not a steelworker.” Id. Likewise, from the premises that the city workers in this

case did not act negligently and negligent acts are not intentional acts, we cannot

conclude that city workers did or did not engage in intentional conduct. As Judge

Aldisert emphasizes, “Not knowing that something exists is simply not knowing.”

Id.

18

As Prosser further explains, early common law imposed strict liability

for trespasses that resulted in injury to person or property, with the result that

purely accidental injuries were actionable; all that was required was a voluntary

act. Prosser and Keeton on the Law of Torts, at § 29, 163. But the rule now is

that liability generally does not attach for an “unavoidable accident,” which is an

occurrence that was not intended and that, under all the circumstances, could

not be foreseen or prevented by the exercise of reasonable precautions. Id. at § 29,

162. To be sure, as Prosser emphasizes, no accident “is entirely inevitable, so long

as it results from a voluntary human act[,]” because the harm might have been

avoided had the human act not been undertaken. Id. But liability now does not

arise in the absence of “some wrongful intent or negligence.” Id. at § 29, 163.

Cite as 355 Or 339 (2014) 361

at trial was whether anything more was required to estab-

lish that the alleged taking was intentional and, if so, what.

Here, as we have explained, to establish intent, plaintiff

also had to show that the backup into her home was the

necessary result of the city’s intentional actions.

As a matter of law, plaintiff’s proof, viewed in the

light most favorable to her, was not sufficient to meet that

test. The record establishes that the city regularly cleans

its sewers using the hydrocleaning process. Despite that

fact, backups of sewage into adjacent houses due to the city’s

hydrocleaning are rare and uncommon occurrences. Indeed,

they are so uncommon that one city worker, who had been

cleaning city sewers for seven years, personally had experi-

enced only the backup at issue in this case. And, by the time

of trial almost two years after this back-up, he had heard of

only one other. No one could explain why this backup into

plaintiff’s house occurred while, day in and day out, the city

hydrocleans sewers without similar backups occurring. To

be sure, on this record, a factfinder could find that the city’s

hydrocleaning was a “but for” cause of the backup. But some

other factor, one not identified on this record, had to be at

work as well.

The conclusion most favorable to plaintiff on this

record is that the intrusion of sewage water into one or more

nearby houses was a known risk of hydrocleaning generally,

but one that rarely came to pass. Under the natural and

ordinary consequences test, for the city to be found to have

intended the invasion of plaintiff’s property, and not just the

acts that, in some causal way, led to or contributed to that

invasion, the evidence had to establish the likelihood of that

invasion with greater certainty. Without any evidence that

the sewage backup into plaintiff’s house was the necessary,

certain, predictable, or inevitable result of the city’s inten-

tional manner of hydrocleaning the adjacent sewer, the evi-

dence was insufficient to support plaintiff’s inverse condem-

nation claim. The trial court should have directed a verdict

for the city on that claim, and the Court of Appeals erred in

concluding otherwise.19

19

Our conclusion on these facts accords with those of courts in other juris-

dictions that have resolved takings claims based on sewage overflow into pri-

vate houses. See, e.g., City of Dallas, 142 SW3d at 315 (evidence established that

362 Dunn v. City of Milwaukie

We emphasize that plaintiff and other property own-

ers who suffer property damage under circumstances of this

kind are not necessarily without any remedy. Oregon has

abrogated its traditional sovereign immunity; both the state

and other governmental units can be sued on common-law

tort theories. A property owner in Oregon therefore has the

same recourse against the government as against a private

tortfeasor, subject to the requirements of the Tort Claims Act

(ORS 30.260 - 30.302).20 Plaintiff in fact attempted to pursue

a tort claim in this case, but the trial court dismissed it for

lack of timely notice. Because the Court of Appeals affirmed

the trial court’s denial of the city’s motion for directed ver-

dict, it declined to address plaintiff’s cross-assignments of

error regarding the trial court’s dismissal of her tort claim.

Dunn, 241 Or App at 97 n 2. Plaintiff’s arguments in that

city efforts to unclog sewer lines did not ordinarily cause residential flooding;

no taking was shown given lack of evidence that damage was substantially cer-

tain to occur and that city took actions with knowledge of that fact); Edwards v.

Hallsdale-Powell Utility Dist. Knox County, Tenn., 115 SW3d 461, 467 (Tenn 2003)

(no showing that backup of sewer was caused by purposeful or intentional act in

maintenance of sewer lines, as opposed to clog from natural causes or negligence

of utility district). Some courts have reached the same conclusion even though

their state constitutions more broadly guarantee compensation for damage to

property, as well as takings of property. See, e.g., Henderson v. City of Columbus,

285 Neb 482, 496, 827 NW2d 486, 496-97 (2013) (no taking or compensable dam-

age under state constitution for single incident of sewage flooding where evidence

could not support finding that city knew damage would occur from its actions

in responding to malfunction of sewer system); see generally Moeller, 218 Or at

425-27 (contrasting Oregon Constitution’s taking clause with those of states that

include “damage,” which has led those states to extend compensation to a broader

range of cases than Oregon’s clause reaches).

Cases in which property owners have succeeded in sewage invasion takings

claims typically have involved repeated or chronic sewage invasions that permit-

ted a finding that the government, in failing to correct the source of the overflow,

acted intentionally or maintained an intentional nuisance. See, e.g., Robinson,

301 Ark 226, 228-29, 232, 783 SW2d 53, 54, 56 (1990) (recurrent sewage invasion

of plaintiff’s home over nine-year period, caused by chronically malfunctioning

lift station pump, which continued despite plaintiff’s pleas to the city for relief,

was a compensable taking; city knew that invasion was substantially certain to

result from its failure to remedy problem; city appropriated use of plaintiff’s prop-

erty for the public purpose of serving as overflow dump for sewage and appropri-

ately should have to purchase the property so taken); see also DeKalb County v.

Orwig, 261 Ga 137, 138-39, 402 SE2d 513, 514-15 (1991) (whether city’s action was

taking was factual issue for jury where city failed to take remedial action after

first sewage backup, and second sewage backup occurred).

20

To the extent that the conduct in question is not a tort, but instead is

purely accidental or otherwise nonactionable, the protection for a property owner

may lie in the purchase of private insurance to cover such events, whether they

involve governmental or private actors.

Cite as 355 Or 339 (2014) 363

regard remain to be resolved on remand to the Court of

Appeals.

The decision of the Court of Appeals is reversed, and

the case is remanded to that court for further proceedings.