STATE OF OREGON, by and through its Department of Transportation, Plaintiff-Appellant,
KULWINDER SINGH; MARVIN E. HORN and PATRICIA A. HORN, husband and wife; RAYMOND E. ELLIS; and CORVALLIS MARKET, INC., an Oregon corporation, dba Corvallis Market, Defendants-Respondents.
Argued and submitted on November 06, 2012.
Linn County Circuit Court 110469 James C. Egan, Judge.
Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the briefs were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Adam R. Kelly argued the cause for respondents Kulwinder Singh and Corvallis Market, Inc. With him on the brief were Cynthia M. Fraser and Garvey Schubert Barer.
No appearance for respondents Marvin E. Horn and Patricia A. Horn.
No appearance for respondent Raymond E. Ellis.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
In this condemnation case, plaintiff, the Oregon Department of Transportation, appeals a judgment of the trial court dismissing its condemnation action against defendant. On defendant's motion for summary judgment, the trial court concluded that plaintiff's prelitigation offer, required by ORS 35.346(1), to acquire an easement on part of defendant's property and to compensate him for the loss of rights of access to public roads was insufficiently definite because it did not specify the road access that defendant's parcel would have after the acquisition. The court dismissed the action without prejudice, and plaintiff appeals. We affirm.
The relevant facts are undisputed. Highway 34 runs west and east and Peoria Road runs north and south, and they intersect in Linn County. Defendant owns the parcel of land at the southeast corner of that intersection, and he operates a convenience store on the site. Defendant owns two specific rights of access from the north side of his property to Highway 34, and he has a common-law right of access from the west side of his property to Peoria Road. Thus, defendant has three rights of access from his property to public roads.
As part of a road improvement project at the intersection, plaintiff sought to eliminate defendant's two specific rights of access to Highway 34. It also sought to acquire a permanent easement over property on the west side of defendant's parcel, which would eliminate defendant's common-law right of access to Peoria Road. In order to preserve access to defendant's property, plaintiff planned to build a new road from Peoria Road to defendant's property. The new road would begin two parcels south of defendant's parcel. In order to build the new road, plaintiff planned to acquire easements over the two parcels south of defendant's parcel.
In December 2010, plaintiff provided defendant a packet of documents including a letter and "Acquisition Summary Statement" offering to pay $64, 887 for both (1) the permanent easement on the west side of defendant's parcel and (2) damages for the decrease in value of the remaining property caused by the easement and the elimination of the rights of access to Highway 34. Plaintiff also included the appraisal upon which the offer was based and maps of the proposed easements for the new road that would provide access to defendant's property from Peoria Road. The letter informed defendant that "[t]he legal document and enclosed agreements, if any, cover the terms of our proposed real property agreement." We refer to the legal document that was enclosed as the proposed real property agreement.
The proposed real property agreement provided that defendant would grant plaintiff an easement between his property and Peoria Road and would grant plaintiff all "abutter's rights of access" between his property and both Peoria Road and Highway 34. Specifically, the proposed agreement provided that defendant ("grantor") granted plaintiff ("grantee") an easement over property on the west side of defendant's parcel
"TOGETHER WITH all abutter's rights of access, if any, between [Highway 34] and Grantor's remaining real property.
"ALSO TOGETHER WITH all abutter's rights of access, if any, between the Peoria Road and Grantor's remaining real property, EXCEPT, however,
"Grantee shall either construct a public frontage road, or provide some other access road on the East side of Peoria Road, and Grantor and Grantor's heirs, successors and assigns, shall be entitled to access said road for any purpose upon application filed with Grantee and issuance of a road approach permit pursuant to applicable statutes and regulations. Said road shall be connected ...