ODOT v. Alderwoods (Oregon), Inc.

Evidence of diminution in value was properly excluded in determining the compensation award for loss of access due to highway construction.

The Oregon Department of Transportation (ODOT) brought action against Alderwoods Inc. (Alderwoods) to acquire its land which abut Highway 99W. This project involved reconstruction of a sidewalk and removal of the curb and driveways connected to Alderwoods’ property. The trial court excluded evidence regarding diminution of value to Alderwoods’ property, on the state’s motion, and awarded compensation of $11,792. Alderwoods appealed, assigning error to the trial court’s granting the state’s motion. In two concurrences and one dissent, the Court affirmed the trial court’s ruling. Judge Armstrong’s concurrence reasoned that, because the state’s condemnation was to promote the safe and efficient use of the highway, Alderwoods has no lawful access to the highway; therefore, damages based on loss of access were irrelevant. Judge Sercombe’s concurrence reasoned that, because the only private property interest the state took was a construction easement, and because Alderwoods had no real property interest in the driveways, the trial court did not err in refusing to admit evidence of diminution in value. In his dissent, Judge Wollheim argues the trial court erred by excluding the evidence because the state’s acquisition diminished Alderwoods’ direct right of access to Highway 99W. Affirmed by equally divided court.