72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3457
A-Engrossed
House Bill 3372
Ordered by the House April 7
Including House Amendments dated April 7
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon Law
Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Provides standard procedure for entry upon and examination,
survey, testing and sampling of real property before commencement
of condemnation action.
A BILL FOR AN ACT
Relating to precondemnation access to land; creating new
provisions; and amending ORS 223.010, 366.365, 526.178,
545.239, 547.305, 552.315, 772.210, 772.410, 772.510 and
836.045.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2003 Act is added to and made
a part of ORS chapter 35. + }
SECTION 2. { + (1) Subject to the requirements of this
section, a condemner may enter upon, examine, survey, conduct
tests upon and take samples from any real property that is
subject to condemnation by the condemner. A condemner may not
enter upon any land under the provisions of this section without
first attempting to provide actual notice to the owner or
occupant of the property. If the condemner has not provided
actual notice, written notice must be posted in a conspicuous
place where the notice is most likely to be seen. The posted
notice must give the condemner's name, address and telephone
number and the purpose of the entry. A condemner may conduct
tests upon or take samples from real property only with the
consent of the owner or pursuant to an order entered under
subsection (2) of this section.
(2) If the owner of property objects to examination or survey
of the property under this section, or does not consent to the
terms and conditions for testing or sampling of the property, the
condemner may file a petition with the court seeking an order
providing for entry upon the property and allowing such
examination, survey, testing or sampling as may be requested by
the condemner. The court may enter an order establishing
reasonable terms and conditions for entry and for any
examination, survey, testing or sampling of the property
requested by the condemner. Reasonable compensation for damage or
interference under subsection (3) of this section may be
established in the proceeding either before or after entry is
made upon the property by the condemner.
(3) An owner is entitled to reasonable compensation for:
(a) Any physical damage caused to the property by the entry
upon or examination, survey, testing or sampling of the property;
and
(b) Any substantial interference with the property's possession
or use caused by the entry upon or examination, survey, testing
or sampling of the property.
(4) If a condemner is required to pay compensation to an owner
in a proceeding under subsection (2) of this section, and the
condemner thereafter seeks condemnation of the same property, the
owner is not entitled to any payment of compensation in the
condemnation action that would result in the owner receiving a
second recovery for the same damage or interference. + }
SECTION 3. { + Section 2 of this 2003 Act applies only to the
entry upon or examination, survey, testing or sampling of the
property by a condemner that occurs on or after the effective
date of this 2003 Act. + }
SECTION 4. ORS 223.010 is amended to read:
223.010. For the purposes of ORS 223.005, a city may enter
upon, survey { - , - } { + and + } examine { + property in
the manner provided by section 2 of this 2003 Act + } and
{ + may + } select any such property or rights for the purpose
of constructing any ditch, drain, dam, dike, canal, flume, sewer,
reservoir, septic tank, filter bed, sewer form or purifying plant
or laying or constructing and maintaining any pipe, sewer, drain,
aqueduct, dam, dike, canal, flume, reservoir, septic tank, filter
bed, sewer form or purifying plant or other plant, building or
electric lines or system for municipal uses, including but not
limited to, aviation fields, parks, city hall, city buildings,
jails, docks, piers, slips, shore and terminal structures.
SECTION 5. ORS 366.365 is amended to read:
366.365. The Department of Transportation may go upon private
property { - for the purpose of examination, inspection or
survey - } { + in the manner provided by section 2 of this 2003
Act + } to determine the advisability or practicability of
locating and constructing a highway thereover { - , - } or the
source, suitability or availability of road-building materials
thereon. { - The department may exercise this authority prior
to the filing or commencement of condemnation proceedings, but in
the exercise of such authority no damage shall be done the
property nor shall the owner be unnecessarily inconvenienced or
disturbed in the use and enjoyment of the property of the
owner. - }
SECTION 6. ORS 526.178 is amended to read:
526.178. The State Board of Forestry, or any duly authorized
representative of the board, may go upon private property
{ - for the purposes of examination, inspection or survey - }
{ + in the manner provided by section 2 of this 2003 Act + } to
determine the advisability or practicability of acquiring real
property { - , - } or any interest in real property. { - The
board may exercise this authority prior to the filing or
commencement of condemnation proceedings, but in the exercise of
such authority the owner shall not be unnecessarily
inconvenienced or disturbed in the use and enjoyment of the
property of the owner. - }
SECTION 7. ORS 545.239 is amended to read:
545.239. (1) The board of directors and its agents and
employees have the right to enter upon any land { + in the
manner provided by section 2 of this 2003 Act + } to make surveys
{ - , - } and may locate the necessary irrigation or drainage
works and the line for any canals and the necessary branches for
the works or canals on any lands { - which - } { + that + }
may be considered best for such location. The board also has the
right to acquire, by lease, purchase, condemnation or other legal
means, all lands, water, water rights, rights of way, easements
and other property, including canals and works and the whole of
irrigation systems or projects constructed or being constructed
by private owners, necessary for the construction, use, supply,
maintenance, repair and improvement of any canals and works
proposed to be constructed by the board. The board also has the
right to so acquire lands, and all necessary appurtenances, for
reservoirs, and the right to store water in constructed
reservoirs, for the storage of needful waters, or for any other
purpose reasonably necessary for the purposes of the district.
(2) In the acquisition of property under subsection (1) of this
section, the district has the right to acquire by condemnation
property already devoted to public use { - which - }
{ + that + } is less necessary than the use for which it is
required by the district, whether used for irrigation or any
other purpose, and any other properties owned by the state or any
of its departments or commissions. In the acquisition of property
or rights by condemnation, the board shall proceed in the name of
the district under the provisions of the laws of Oregon.
SECTION 8. ORS 547.305 is amended to read:
547.305. (1) The officers and employees of any drainage
district shall have the right to:
(a) Enter upon any land { - to make surveys - } { + in the
manner provided by section 2 of this 2003 Act + }.
(b) Locate the necessary drainage or irrigation works and the
necessary branches for the same, on any lands { - which - }
{ + that + } may be deemed best for such location.
(c) Acquire, either by lease, purchase, condemnation or other
legal means, all lands, rights of way, easements and other
property necessary for the construction, operation or maintenance
of any drainage or irrigation works, including the enlargement,
improvement or extension of any natural or artificial waterway
for such purposes.
(d) Make all necessary water filings or appropriation of water
under the general laws of Oregon for irrigation of lands within
such district.
(2) The property, the right to condemn which is hereby given,
shall include property already devoted to public use
{ - which - } { + that + } is less necessary than the use for
which it is required by the district, whether used for drainage,
irrigation or any other purpose. The right of way is hereby
given, dedicated and set apart to locate, construct and maintain
such drainage or irrigation works over and through any of the
lands { - which - } { + that + } are now or may be the
property of this state.
(3) In the acquisition of property or rights by condemnation,
proceedings under the provisions of this section shall be brought
in the name of the district under the provisions of { - the
laws of Oregon - } { + ORS chapter 35 + }.
SECTION 9. ORS 552.315 is amended to read:
552.315. The district board, its officers, agents or employees
shall have the right to enter upon any land { + in the manner
provided by section 2 of this 2003 Act + } to make surveys for
the purposes of the district { - , upon giving the owners of the
land notice reasonably in advance of any survey - } .
SECTION 10. ORS 772.210 is amended to read:
772.210. (1) Any public utility, electrical cooperative
association or transmission company may:
(a) Enter upon lands within this state { + in the manner
provided by section 2 of this 2003 Act + } for the purpose of
examining, locating and surveying the line thereof and also other
lands necessary and convenient for the purpose of construction of
service facilities, doing no unnecessary damage thereby.
(b) Condemn such lands not exceeding 100 feet in width for its
lines (including poles, towers, wires, supports and necessary
equipment therefor) and in addition thereto, other lands
necessary and convenient for the purpose of construction of
service facilities { - ; and - } { + . + } If the lands are
covered by trees { - which - } { + that + } are liable to
fall and constitute a hazard to its wire or line, any public
utility or transmission company organized for the purpose of
building, maintaining and operating a line of poles and wires for
the transmission of electricity for lighting or power purposes
{ - , - } may condemn such trees for a width not exceeding 300
feet, as may be necessary or convenient for such purpose.
(2) Notwithstanding subsection (1) of this section, any public
utility, electrical cooperative association or transmission
company may, when necessary or convenient for transmission lines
(including poles, towers, wires, supports and necessary equipment
therefor) designed for voltages in excess of 330,000 volts,
condemn land not to exceed 300 feet in width. In addition, if the
lands are covered by trees { - which - } { + that + } are
liable to fall and constitute a hazard to its wire or line, such
public utility or transmission company may condemn such trees for
a width not exceeding 100 feet on either side of the condemned
land, as may be necessary or convenient for such purpose.
(3) Notwithstanding subsection (1) of this section, a water or
gas public utility may condemn such lands, not exceeding 50 feet
in width, as may be necessary or convenient for purposes of
constructing, laying, maintaining and operating its lines,
including necessary equipment therefor.
(4) The proceedings for the condemnation of such lands shall be
the same as that provided in ORS chapter 35, provided that any
award shall include, but shall not be limited to, damages for
destruction of forest growth, premature cutting of timber
{ - , - } and diminution in value to remaining timber caused by
increased harvesting costs.
SECTION 11. ORS 772.410 is amended to read:
772.410. Any corporation organized for the purpose of opening
or operating any gold, silver, or copper vein or lode, or any
coal or other mine, or any marble, stone or other quarry, or for
cutting or transporting timber, lumber, or cordwood, or for the
manufacture of lumber:
(1) May construct and operate railroads, skid roads, tramways,
chutes, pipelines and flumes between such points as may be
indicated in their articles of incorporation.
(2) May enter upon any land between such points { + in the
manner provided by section 2 of this 2003 Act + } for the purpose
of examining, locating and surveying the line of such railroads,
skid roads, tramways, chutes, pipelines and flumes, doing no
unnecessary damage thereby.
(3) May condemn so much of said land as may be necessary for
the purposes of this section, not exceeding 60 feet in width by a
condemnation action as prescribed by ORS chapter 35.
SECTION 12. ORS 772.510 is amended to read:
772.510. (1) Any pipeline company { - which - }
{ + that + } is a common carrier and { - which - }
{ + that + } is regulated as to its rates or practices by the
United States or any agency thereof, may enter { + in the manner
provided by section 2 of this 2003 Act + } upon lands within this
state outside the boundaries of incorporated cities.
(2) This right may be exercised for the purpose of examining,
surveying and locating a route for any pipeline, but it shall not
be done so as to create unnecessary damage.
(3) These pipeline companies may appropriate and condemn such
lands, or easements thereon or thereover, in such width as is
reasonably necessary to accomplish their pipeline company
purposes, by proceedings for condemnation as prescribed by ORS
chapter 35.
SECTION 13. ORS 836.045 is amended to read:
836.045. In the condemnation of property authorized by ORS
836.025, the Oregon Department of Aviation as authorized by the
State Aviation Board shall proceed in the name of the state in
the manner provided by ORS chapter 35. For the purpose of making
surveys and examinations relative to any condemnation
proceedings, it shall be lawful to enter upon any land { + in
the manner provided by section 2 of this 2003 Act + }, doing no
unnecessary damage. Notwithstanding the provisions of any other
statute, or the charter of any municipality, the department may
take possession of any property to be condemned at any time after
the commencement of the condemnation proceedings. The department
shall not be precluded from abandoning the condemnation of any
such property in any case where possession thereof has not been
taken.
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