# Wiggins v. Barrett & Associates, Inc. > Oregon Supreme Court · October 4, 1983 · 295 Or. 679 URL: https://www.frixlaw.com/law-library/cases/9549021 ## Case - **Full name:** WIGGINS Et Ux, Petitioners on Review, v. BARRETT & ASSOCIATES, INC. Et Al, Respondents on Review - **Court:** Oregon Supreme Court - **Decided:** October 4, 1983 - **Citations:** 295 Or. 679; 669 P.2d 1132; 1983 Ore. LEXIS 1550 - **Precedential status:** Published - **Opinion:** Concurrence by Linde - **Judges:** Lent, Linde - **Cited by:** 70 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549021 ## Opinion text LINDE, J., specially concurring. This is an appealing case for giving the private parties the quid pro quo that they believed they had been promised in return for conveying an easement in their land, if the facts are as stated by plaintiffs. I write separately in order to draw *699 attention to the narrow holding stated in this case, and to make clear that the case is not authority for broader applications of “equitable estoppel” against government agencies that should only be decided by a majority of this court. The present case is characterized by these facts: It is an action for breach of contract. It arises out of a negotiated acquisition by a sanitary district of an interest in real property in return for an economic consideration, the installation of a sewer connection. The disagreement is over the promised nature of that consideration, a difference in installation costs that translates into money. The lawsuit is as close as a case can get to an ordinary contract action between private parties except that defendant is a sanitary district. On these facts this case holds only that the district may be bound by the promise of one who is in fact its agent, even though he exceeded his actual authority, if the district “clothed” the agent with apparent authority, if the promise is one that the district could lawfully make and perform, if no law, rule, or other discoverable source places the agent’s act beyond his authority, if the person relying on the agent’s apparent authority has no reason to know that he lacks actual authority, and if the district has accepted and retained the benefit received in return for the agent’s unauthorized promise. That is a very limited holding. It does not invite a claim of “equitable estoppel” whenever someone has relied on unauthorized and erroneous information, advice, or assurances by an employee or agent of a public agency and believes that he can persuade a court that it would be inequitable to let the agency disavow its employee’s unauthorized statements. It does not invite turning every administrative act into a type of promise enforceable by estoppel. 1 I do not agree with the more general statements in the opinion on this subject, beyond the narrow holding described above. “Equitable estoppel” is one of those familiar all-purpose formulas that is invoked in a wide variety of very different situations and buries these differences under a single, appealing phrase. This is illustrated by the use of that phrase in the *700 old turn-of-the-century opinions quoted in the present case, which may or may not have been correctly decided but have more to do with old notions of “vested rights” than with the contractual acquisition of property by a public entity that is involved here. The range of different occasions for claims of estoppel is why the subject has long been a troubling and controversial one in administrative law. 2 Here we deal with a bilateral, negotiated contract for the transfer of property, which has been conveyed by the private parties and retained by the public agency. This is not the same as a private party’s reliance on unauthorized advice about the meaning of a law or regulation, or about intended agency action, or about a claim, or many other communications of private parties with employees or apparent agents of public agencies. The supposed reasons cited in the opinion for past reluctance to estop the government are easy to dismiss, but that does not come to grips with the issue of the applicable law. The question of estoppel does not depend on pragmatic assumptions about the vulnerability of government to collusion or the mistakes of inept employees, nor is its analysis much advanced by metaphors about square corners. The legal problem of estoppel against government is that the doctrine itself is only judge-made law, and the difference between estoppel against private parties and against government is that government, unlike private parties, itself is or can be a source of the law governing its own transactions. A private party can seek to exclude possible estoppel by taking special care to instruct and control its employees, by publicizing its disclaimers, and by other steps to prevent claims of justified reliance, but a private party cannot exclude its operations from the doctrine itself. The government, on the other hand, obviously can exclude itself from the doctrine by legislation, short of a possible denial of due process; legislation *701 can repeal the doctrine altogether. 3 What the government can legislate explicitly it can legislate implicitly, or by delegation to subordinate public bodies. In other words, the law of apparent authority and estoppel of public agencies is a question of public law, not of general equitable doctrines. An agency generally has delegated power to specify who may speak for it on< various matters. Unlike similar arrangements within private organizations, these delegations of authority within an agency are themselves law. It is important to note, therefore, that the present case excludes estoppel if a public agency has made any public record of the scope and limits of the authority of its employees or agents. In short, “equitable estoppel” is a misleading term insofar as it papers over differences among governmental agencies, among governmental actions, and among private claims. Because government within constitutional limits and interpretation of governing statutes can provide the law governing its actions, each such claim logically depends on an analysis of that law, not on generic doctrines. In this case we have no indication that the law governing sanitary districts did not expect their property transactions with private parties to follow the ordinary law governing such contracts, including the possibility of estoppel by the acts of an agent exercising apparent authority to speak for the district in such a transaction. For that reason I concur in the holding. For examples of contract claims that perhaps should have been litigated as administrative acts, see N. W. Pac. Indem. v. Junction City Water Dist., 295 Or 553 , 558 n. 5, 668 P2d 1206 (1983); Maddox v. Clac. Cty Sch. Dist. No. 25, 293 Or 27 , 643 P2d 1253 (1981). In addition to the sources cited by Justice Lent, see Davis, Administrative Law Treatise and 1982 Supp., § 17.01-17.06; Newman, Should Official Advice Be Reliable? — Proposals As To Esoppel and Related Doctrines in Administrative Law, 53 Col L Rev 374 (1953); Note, Equitable Estoppel of the Government, 79 Col L Rev 551 (1979). See, e.g., Brown v. Portland School Dist. No. 1, 291 Or 77 , 628 P2d 1183 (1981) (leaving open whether notice provisions of Tort Claims Act precludes estopping an agency from denying a nonconforming notice). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549021. Public record. Not legal advice.