Summary of a Recent
Judicial Development in
Landowner Liability

Inverse Condemnation, Timber Trespass Claims
Against County Government

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Worman v. Columbia County, 195 P.3d 414 (Or. Ct. App. 2008), the Oregon Court of Appeals held that damage to timber caused by chemical spray was a type of injury covered by the Oregon timber trespass statute and reversed the trial court's ruling on that issue, but found that plaintiffs had not sufficiently alleged the "public use" facet of their inverse condemnation claim. Therefore, the court affirmed the trial court's order of summary judgment as to that claim.

Background

After discovering that trees, shrubs, and grass were dying on their property, apparently due to herbicide application, plaintiffs contacted the Columbia County road department. Id. at 416. The department informed them that it had not sprayed in that area for three years, and that it kept no records of its spraying. Id. Plaintiffs filed a "Report of Loss Allegedly Caused by Use of Insecticides, Herbicides, Fungicides and Other Pesticides" with the state department of agriculture, listing the culprit as unknown, but noting the possibility that it was the county road department. Id. The plaintiffs subsequently contacted the county commissioner about the problem, and learned that the county had sprayed in their area and did keep records of the spraying. Id. One of the county's employees had sprayed the ditches around the plaintiffs' home, and had been approached by their neighbor who allegedly asked him to spray the plaintiffs' yard because he did not like them. Id. The employee claimed that he refused to spray the plaintiffs' property, but sprayed the neighbor's yard at his request. Id. at 416-17. The employee also testified that he saw the damage to the plaintiffs' yard, and that his spray truck could not have made the type of wavelike patterns that were visible because it only sprayed in a straight line. Id. at 417. He also claimed that the herbicide used, Garlon-4, did not kill grass. Id. Plaintiffs disputed his story and brought an action against the county for inverse condemnation, negligence, and timber trespass based on his intentional or accidental spraying of their property. Id. The trial court granted summary judgment for the county on all three claims, and plaintiffs appealed. Id.

Arguments

The county argued that the claims were barred by the failure to give timely tort claim notice, that the plaintiffs could produce no evidence from which a reasonable juror could conclude that the county sprayed their property, and alternatively that the plaintiffs failed to state claims for inverse condemnation or timber trespass. Id.

Analysis and Holdings

The court explained that the 180-day limitation period for providing notice of a tort claim commences at the time of discovery of the injury, which occurs when the plaintiff has actual or imputed knowledge of three separate elements: harm, tortious conduct, and causation. Id. at 418. Discovery of the damage was undisputed, but the issue in this case was at what point the plaintiffs knew or should have known that there was a "substantial possibility" that the injury was caused by the county's tortious conduct. Id. The court found genuine issues of material fact as to when the plaintiffs had actual or imputed knowledge of a substantial possibility that the county was responsible for the damage to their property, and thus the trial court had erred in granting summary judgment on those grounds. Id. at 419. The court further found remaining genuine issues of material fact as to whether the county had sprayed plaintiffs' property, and reversed the summary judgment order on those grounds also. Id. at 420.

Turning to the plaintiffs' inverse condemnation claim, the court noted that it was brought under Article I, § 18 of the Oregon Constitution, which states that private property shall not be taken for public use without just compensation. Id. The court agreed with the lower court's ruling that the plaintiffs had not alleged that their property had been taken "for public use" within the meaning of that section, and thus affirmed summary judgment for the county on that claim. Id. at 420-22. The plaintiffs' claim for timber trespass alleged that the county's employee willfully injured their trees, but the county, relying on case precedent, argued that damages from injuries caused by chemical spray were not within the scope of the timber trespass statute, Or. Rev. Stat. § 105.810. Id. at 422. The court disagreed and concluded that the type of injury alleged by the plaintiffs fell within the scope of the statute, and therefore reversed the trial court's holding on that issue as well. Id. at 424.

The case was decided on October 15, 2008.