THE FOSTER GROUP, INC., an Oregon corporation, Plaintiff-Appellant,
CITY OF ELGIN, OREGON, an Oregon municipality, Defendant-Respondent, and BAGETT, GRIFFITH & BLACKMAN, an assumed business name of Rimrock Land Surveying, LLC, Defendant
Argued and Submitted September 6, 2013
Union County Circuit Court. 090945953. Russell B. West, Judge.
Todd Foster argued the cause and filed the briefs for appellant.
Matthew J. Kalmanson argued the cause for respondent. On the brief were Marjorie A. Speirs, Janet M. Schroer, and Hart Wagner LLP.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[264 Or.App. 426] SERCOMBE, J.
This appeal concerns the timeliness of several claims brought by plaintiff, the owner of a mobile home park, against the City of Elgin. Those claims stem from two alleged wrongful acts by the city. First, in support of claims for trespass, negligent interference with real property, ejectment, civil conspiracy to commit fraud, and inverse condemnation, plaintiff alleged that the city, in 2004, constructed a road that encroached on plaintiff's property and conspired with a surveyor to fraudulently report that the city, not plaintiff, owned the property underlying the road. Second, in support of federal due process and equal protection claims under 42 USC section 1983, plaintiff alleged that the city, without giving notice, decided to block access from plaintiff's private drives onto that road in 2008. The city successfully moved for summary judgment, arguing that all of plaintiff's claims were untimely under the applicable statutes of limitations. Plaintiff appeals, arguing that all of the claims in its September 2009 complaint were timely.
We conclude that the trial court erred in ruling that plaintiff's section 1983 claims, based on conduct that occurred in 2008, were outside the applicable two-year statute of limitations, and its inverse condemnation claim, based on the city's physical occupation of plaintiff's property in 2004, was outside the six-year statute of limitations that governs that claim. The trial court did not err, however, in concluding, as a matter of law, that plaintiff's claims for trespass, negligence, and civil conspiracy accrued more than two years before plaintiff filed its complaint and were therefore outside the applicable two-year statute of limitations. Further, we do not consider plaintiff's claim that the trial court erred in applying a two-year statute of limitations, rather than a 10-year statute of limitations, to the ejectment claim because plaintiff invited any error in applying that limitation period. Accordingly, we reverse with respect to the section 1983 claims and inverse condemnation claim and otherwise affirm.
Because this case comes to us on summary judgment, we state the facts and all reasonable inferences that can be drawn from them in the light most favorable to [264 Or.App. 427] plaintiff, the nonmoving party, to determine whether the city is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997).
The Elgin Mobile Home Park was built in two phases between 1968 and 1977. Plaintiff's president, Eldon Foster, who was trained as an engineer, drew up the plans for the park and developed it with the city's approval. Although Foster never had the park property surveyed, he understood that an existing cattle fence marked the property's southern border. He also was aware of an exception to plaintiff's title that gave the city a right to construct a road, Beverly Terrace, along the property's southern border. Foster understood that that cattle fence marked what would become the center line of Beverly Terrace and the road would extend 25 feet onto park property. The park was designed and built based on that understanding.
By the time the park was completed in 1977, it complied with all surveys on record, including two surveys commissioned by the city in 1972 and 1974. Although those surveys generally were consistent with the southern boundary line marked by the cattle fence, Foster was not aware of those surveys at the time.
In 1978, surveyor Bagett, Griffith & Blackman (Bagett) conducted and recorded an additional survey for a nearby landowner. The 1978 survey was different than those completed earlier in the decade. Along with other changes, the survey shifted the southern boundary of the park, neighboring properties, and the boundary of Beverly Terrace approximately 25 feet north. As with the earlier 1970s surveys, Foster was not aware of the 1978 survey at the time.
In August 2000, Foster sought to acquire property adjacent to the park from neighboring landowners. Though Foster was unsuccessful, he learned that those landowners planned to ask the city to construct Beverly Terrace. Foster contacted the city recorder, Joe Garlitz, to discuss the possibility that the city would allow a neighboring landowner to develop property that would require the construction [264 Or.App. 428] of Beverly Terrace. Garlitz stated that the existing fence marked the southern boundary of the park property, within three or four feet. Soon after, however, Garlitz told Foster that the park encroached on the proposed location of Beverly Terrace.
Foster decided that he would commission a boundary survey. At Garlitz's suggestion, Foster commissioned Bagett to survey the park in May 2001. Foster received the survey, read it, and discovered that it showed the park encroaching onto Beverly Terrace by approximately 25 feet. That is, it now appeared that the center line of Beverly Terrace was not marked by the cattle fence; nearly all of Beverly Terrace was located north of the fence, on what plaintiff had believed was its property. The survey showed that one mobile home and three storage buildings would encroach onto Beverly Terrace.
Sometime after, Foster called Garlitz to discuss the survey. Garlitz stated that the city would not construct Beverly Terrace until the neighboring landowners paid for the development. He also told Foster that, if the city built the road, it would only build the middle 22 feet, not the full 50 feet as originally planned. Further, according to plaintiff's complaint, Garlitz " acknowledged that the surveys of the City were fraught with errors and for that reason he believed the City Council would grant the Park a five-foot setback under the terms of a conditional use permit."  The upshot for Foster was that none of the park's structures would have to be moved.
Two years later, in September 2003, Foster learned that the city had voted to construct the entire 50-foot right-of-way of Beverly Terrace. At a September 9, 2003, city council meeting, a public works supervisor said that he would like to have plaintiff clear the right-of-way within 30 days. [264 Or.App. 429] Construction was delayed, however, and in February and March 2004, the city sent two follow-up letters to plaintiff again requesting to clear the ...