Appeal from Circuit Court, Wheeler County. J. R. Campbell, Judge. No. 2327-L.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Owen M. Panner, Bend, argued the cause for respondents. With him on the brief was Roy Kilpatrick, John Day.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
This appeal is from a compensation award in a condemnation action under ORS 390.805 through 390.925 which is the Scenic Waterways Act adopted by initiative on November 3, 1970. The Act became effective December 3, 1970.
Prior to November 3, 1970 Chaparral Recreation Association had acquired and had started developing for recreation purposes approximately 2,500 acres of land along and near the John Day River a few miles upstream from the highway crossing at Clarno. The land consisted of two noncontiguous parcels with extensive river frontage and other noncontiguous parcels of semiarid grazing land in adjacent hills. Chaparral had planned and had commenced extensive development of the better piece of bottom land along the John Day River. Numerous lots had been platted which would be sold for mobile home sites to people to whom the area was attractive on account of its climate, fishing, hunting, rock gathering and dude ranch atmosphere. In connection with the development a recreation hall, swimming pool, well, pump, water lines, power lines, fencing and other similar improvements had been commenced at the time the Act became effective. Several of the lots had been sold and a few mobile homes were installed thereon.
The evidence was that soon after December 3, 1970 Chaparral made contact with plaintiff's employes
and was informed by one or two of them that the project was not violative of the Act and that it could proceed. We do not have presented the question of whether this can be viewed as a valid clearance. Chaparral did proceed with the improvements until, in a letter dated July 2, 1971, the Oregon Attorney General, purportedly on behalf of the Highway Commission, notified Chaparral that the improvements were prohibited by the Act and progress thereon should cease. Chaparral stopped work on the improvements, and filed a form notice dated July 26, 1971 of its intention to proceed. The Highway Commission in a letter dated September 15, 1971 notified Chaparral that the request to proceed with the plan was denied. Thereafter, the condemnation was commenced.*fn1
The only question raised in the trial court proceeding was that of just compensation. The trial court determined that Chaparral was entitled to compensation for the taken land with improvements valued as
of January 20, 1972 (the date of taking) in a total amount of $166,307. Plaintiff had contended that the land should have been valued as of January 20, 1972 (the date of taking) but that the improvements should only have been valued as of the effective date of the Act -- that is, December 3, 1970 -- and that Chaparral was entitled to no compensation for improvement value created between that date and the date of the taking. The basis of this contention is the wording of ORS 390.845 (7) quoted in the footnote. At the conclusion of testimony the parties stipulated in open court that the improvements were 50 per cent completed on December 3, 1970. Of the $166,307 allowed, $69,225 was for ...