Sharon Dunn heard a roar, felt her house shake and watched a sludgy goo of brown-gray sewer water ooze out of her toilet and bathroom sink. It kept coming, dripping from her ceiling, forming a mass 3 inches high that reached her hallway and living room.
The noise was the Portland suburb of Milwaukie’s high-pressure cleaning of its sewer system. Dunn says the city let its waste seep onto her property, and the sludge destroyed everything it touched. She also argues that by allowing it to happen, the city effectively claimed her property – and she was owed compensation.
On Thursday, the Oregon Supreme Court disagreed, ruling that Dunn’s messy problem was not an ordinary consequence of the sewer cleaning and that the city doesn’t owe Dunn money for the damage.
A trial jury found the city liable for $58,000, and the decision was affirmed on appeal. But the Supreme Court wasn’t weighing the fairness of the damage or the city’s role in it – Dunn missed a deadline to file a negligence claim against the city. Instead, Dunn pursued a claim that says the city effectively took her property, and she deserves money for it.
To prove that, Dunn had to show that the August 2005 sewage damage was a natural consequence of the city of Milwaukie’s high-pressure cleaning of its sewer systems.
Cities can “take” property for the purposes of eminent domain. To build a highway, for instance, it can judge that an owner’s property is needed, and compensate the owner for the property it took.
“The United States Supreme Court has recognized that there is a nearly infinite variety of ways that government action or regulation can affect property interests,” Justice Virginia Linder wrote in the decision. “Because of that, no ‘magic formula’ has been identified to enable federal courts to determine, in every variety of case, whether a given interference with property is a taking.”
So Dunn had to show that the city had acted intentionally, and that the sewage overflow from high-pressure cleaning wasn’t just a possibility, it was a definite, conscious consequence of the cleaning.
“Without any evidence that the sewage backup into plaintiff’s house was the necessary, certain, predictable, or inevitable result of the city’s intentional manner of (cleaning) the adjacent sewer,” Linder wrote, “the evidence was insufficient to support plaintiff’s (claim.)”
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