ORS Chapter 772

Chapter 772 — Rightsof Way for Public Uses

 

2009 EDITION

 

 

RIGHTSOF WAY FOR PUBLIC USES

 

UTILITYREGULATION

 

CONDEMNATIONOF PROPERTY BY PRIVATE CORPORATIONS GENERALLY

 

772.010     Rightof entry for survey of proposed right of way; notice required

 

772.015     Condemnationof lands for rights of way and necessary facilities

 

772.020     Condemnationof additional land for railway purposes

 

772.025     Approvalof railroad crossing, intersection or connection

 

772.030     Condemnationof right of way through canyon or pass for joint use by railroads

 

772.035     Acquisitionof water rights by corporations for canal, irrigation, domestic or stockpurposes

 

772.040     Condemnationrights of pipe corporations

 

772.045     Rightto cut timber and build aqueducts

 

772.050     Condemnationof riparian rights and for reservoirs

 

772.055     Condemnationprocedure

 

772.060     Condemnationrights for change of grade or location of railway, canal or pipes

 

772.065     Appropriationof county road or property in lieu thereof by agreement with county court

 

772.070     Procedureon dispute between county and corporation

 

APPROPRIATIONOF PUBLIC LANDS FOR RAILROADS

 

772.105     Authorityto appropriate

 

           CONDEMNATION BY PUBLICUTILITIES AND ELECTRICAL COOPERATIVE ASSOCIATIONS

 

772.205     Definitionsfor ORS 772.210 and 772.215

 

772.210     Rightof entry and condemnation of lands for construction of service facilities

 

772.215     Appropriationof public lands

 

CONDEMNATIONFOR DRAINAGE OR IRRIGATION

 

772.305     Condemnationof right of way for drainage or irrigation

 

772.310     Rightto enlarge existing irrigation system

 

           CONDEMNATION BY CORPORATIONSFOR REDUCTION OF ORES, MINING, QUARRIES, LUMBERING AND TRANSPORTATION OF MININGPRODUCTS

 

772.405     Condemnationby corporations for reduction of ores

 

772.410     Rightof entry and condemnation by mining, quarrying and lumber corporations

 

772.415     Publicbenefit and use of facilities constructed under ORS 772.410

 

772.420     Condemnationfor transportation of minerals; conditions of reversion

 

CONDEMNATIONBY PIPELINE AND GAS COMPANIES

 

772.505     Definitionsfor ORS 772.505 to 772.520

 

772.510     Rightof entry and condemnation by pipeline companies

 

772.515     Regulationconcerning location of facilities

 

772.520     Resolutionshowing route and termini of pipeline

 

CONDEMNATIONFOR UNDERGROUND NATURAL GAS STORAGE

 

772.610     Definitionsfor ORS 772.610 to 772.625

 

772.615     Condemnationfor underground reservoirs; applicability of ORS chapter 35

 

772.620     Placementof pipeline facilities

 

772.625     Resolutionshowing proposed route and termini of pipeline

 

772.005 [Repealed by1971 c.655 §250]

 

CONDEMNATIONOF PROPERTY BY PRIVATE CORPORATIONS GENERALLY

 

      772.010Right of entry for survey of proposed right of way; notice required. (1) Acorporation organized for the construction of a railway, sewer or canal or ofany ditch or flume for the conducting of water for irrigation or domesticpurposes, or for the purpose of selling water to the public for generalpurposes for public use, or for conducting potable or waste water by means ofpipe laid upon or under the surface of the ground; or desiring to useelectrical power in the operation of any railway, shall have a right to enterupon any land, between the termini thereof or elsewhere, for the purpose ofexamining, locating or surveying the lines of such electric or other railway,sewer, canal, ditch, flume or pipeline, for the purpose of surveying ormeasuring any lands or rights appurtenant thereto needed for such purposes,doing no unnecessary damage thereby.

      (2)Prior to entering upon private land under this section, a person who intends toenter upon the land shall first provide written notice by first class mail tothe record owner of the private property of such intent to enter. [Amended by1971 c.655 §232; 1999 c.629 §1]

 

      772.015Condemnation of lands for rights of way and necessary facilities. Any corporationmentioned in ORS 772.010 may condemn so much land as may be necessary for thelines of such railway, sewer, canal, ditch, flume or pipeline, not exceeding100 feet in width, besides a sufficient quantity of land for toolhouses,workshops, materials for construction, timber excepted, and a right throughsuch adjacent land to enable such corporation to construct and repair itslines, poles, towers, wires, underground wires, supports and necessary equipment,railway, sewer, canal, ditch, flume or other pipeline, and to make properdrains. [Amended by 1971 c.655 §233; 1999 c.629 §2]

 

      772.020Condemnation of additional land for railway purposes. (1) Any railwaycorporation mentioned in ORS 772.010 may condemn a sufficient quantity of landin addition to that specified in ORS 772.015, for necessary sidetracks, spurtracks and laterals reasonably necessary for manufacturing establishments, alsofor depot and water stations, cuttings and embankments, and for the properconstruction, security and convenient operation of its road.

      (2)Any such railway corporation may cross, intersect, join and unite its railwaywith any other railway at any point in its route, and upon the grounds of suchother railway corporation, and make the necessary turnouts, sidings, switchesand other conveniences in furtherance of the object of its connection and maycondemn to make such crossings. The railway which is or may be intersected bynew railways, may unite with the owners of such new railways in forming theintersection and connection, and grant the facilities mentioned in thissubsection.

 

      772.025Approval of railroad crossing, intersection or connection. (1) Wheneverany railroad corporation, authorized by ORS 772.020 to condemn the right tocross or connect with any other right of way or constructed line of railroad,is unable to agree with the owner of the line which it desires to cross, it mayapply to the Department of Transportation in the manner provided by ORS 824.228to 824.232.

      (2)Upon such application and upon notice and hearing as provided in ORS chapter183 for contested cases, the department shall determine the right to crossing,intersection or connection, the mode and manner thereof and the compensation tobe paid therefor.

      (3)No agreement for the crossing of one railroad by another shall be valid withoutthe approval of the department. [Amended by 1971 c.655 §234; 1995 c.733 §97;1997 c.275 §23]

 

      772.030Condemnation of right of way through canyon or pass for joint use by railroads. (1) Anyrailroad company whose right of way passes through any canyon, pass or defileshall not prevent any other railroad company from the use and occupancy of saidcanyon, pass or defile for the purpose of its railroad in common with therailroad first located.

      (2)Any railroad company authorized by law to condemn property for right of way orany other corporate purpose, may commence an action for condemnation of a rightof way through any canyon, pass or defile for the purpose of its railroad,where right of way has already been located, condemned or occupied by someother railroad company through such canyon, pass or defile for the purpose ofits railroad.

      (3)Thereupon like proceedings shall be had as are provided by the laws of thisstate for the condemnation of land for right of way and other railroadpurposes. At the time of rendering judgment for damages, the court or judgethereof shall enter a judgment authorizing the railroad to occupy and use theright of way, roadbed and track, if necessary, in common with the railroadcompany already occupying or owning the same, and defining the terms andconditions upon which the same shall be so occupied and used in common. [Amendedby 2003 c.576 §564]

 

      772.035Acquisition of water rights by corporations for canal, irrigation, domestic orstock purposes.Any corporation organized in whole or in part for the construction of a canalfor navigating or manufacturing purposes or of any ditch or flume for thepurpose of conveying water for irrigating, domestic or stock purposes maycondemn such waterways, water rights or privileges, or otherwise acquireestablished water rights or privileges, or those initiated by performing anyacts required, provided or permitted by law, as may be necessary or convenientfor the purpose of supplying, operating, constructing or maintaining the same.

 

      772.040Condemnation rights of pipe corporations. Except in cities, anycorporation organized for conducting water by means of pipe laid upon or under thesurface of the ground may, so far as may be necessary for the laying andkeeping in repair its water pipes, condemn the use of so much land as may benecessary, and may make whatever cuts and excavations as soon as practicableafter condemnation.

 

      772.045Right to cut timber and build aqueducts. Any railway corporation mentioned inORS 772.010 may cut down any standing timber in danger of falling upon its lineor railway, making compensation therefor as provided in ORS 772.055 for landstaken for the use of the corporation. [Amended by 1971 c.655 §235]

 

      772.050Condemnation of riparian rights and for reservoirs. Any corporationmentioned in ORS 772.010 may also condemn:

      (1)The rights of riparian proprietors in any lake or stream, to enable such corporationto develop, manufacture or furnish electrical energy for the operation of anyrailway in this state.

      (2)Lands for the sites of reservoirs for storing water for future use, and forrights of way for feeders carrying water to reservoirs, and for ditches,canals, flumes or pipelines carrying the same away. [Amended by 1971 c.655 §236]

 

      772.055Condemnation procedure. No condemnation of private property shall be madeunder ORS 772.010 to 772.020 or 772.030 to 772.050 until compensation is madeto the owner thereof, irrespective of any increased value thereof by reason ofthe proposed improvement by such corporation, in the manner provided in ORSchapter 35.

 

      772.060Condemnation rights for change of grade or location of railway, canal or pipes. Any corporationmay change the grade or location of its railway, canal or pipes for the purposeof avoiding annoyances to public travel or dangerous or deficient curves orgrades, or unsafe or unsubstantial grounds or foundation, or for other likereasonable causes. For the accomplishment of such change it has the same rightto enter upon, examine, survey and appropriate the necessary lands andmaterials as in the original location and construction of such railway, canalor water pipes. [Amended by 1971 c.655 §237]

 

      772.065Appropriation of county road or property in lieu thereof by agreement withcounty court.(1) Whenever it is necessary for any corporation mentioned in ORS 772.010 toappropriate all or part of any county road or highway for right of way, the corporationmay appropriate so much of the road as may be necessary, and in lieu thereofmay condemn or otherwise acquire property contiguous to or as near adjacent tothe road as possible in an amount equal to the property to be appropriated.

      (2)Upon construction by the corporation of a county road or highway on theproperty so acquired in a manner conformable in the material character of theconstruction of said highways appropriated and upon the same grade or suchother grade as may be agreed upon by the corporation and the county court orboard of county commissioners of the county in which the road is located, andupon the acceptance by the county court or board of such newly constructedroad, and on the conveyance of same to the county, the corporation shall thenbecome the owner and entitled to the possession of so much of the county roador highway so appropriated.

      (3)ORS 772.065 and 772.070 do not apply to roads or streets within any platted orincorporated city or town, or any addition thereto.

 

      772.070Procedure on dispute between county and corporation. (1) If thecounty court or board of county commissioners and corporation cannot agree uponthe matters of appropriation under ORS 772.065, the dispute shall be referredto the Public Utility Commission.

      (2)The commission, after notice and hearing, shall by order determine the termsand conditions upon which the corporation may appropriate the county road orhighway. [Amended by 1971 c.655 §238]

 

      772.100 [Repealed by1971 c.655 §250]

 

APPROPRIATIONOF PUBLIC LANDS FOR RAILROADS

 

      772.105Authority to appropriate. (1) When it is necessary or convenient in thelocation of any railway to appropriate any part of any public road, street,alley or public grounds not within the corporate limits of a municipalcorporation, the county court of the county wherein such road, street, alley orpublic grounds is located, may agree with the corporation constructing theroad, upon the extent, terms and conditions upon which the same may beappropriated or used, and occupied by such corporation. If the parties areunable to agree, the corporation may appropriate so much thereof as isnecessary and convenient in the location and construction of the road.

      (2)Whenever a private corporation is authorized to appropriate any public highwayor grounds as mentioned in subsection (1) of this section, within the limits ofany town, whether incorporated or not, such corporation shall locate their roadupon such particular road, street, alley or public grounds, within such town asthe local authorities designate. If the local authorities fail to make suchdesignation within a reasonable time when requested, the corporation may makesuch appropriation without reference thereto. [Amended by 1971 c.655 §239]

 

      772.110 [Repealed by1971 c.655 §250]

 

      772.115 [Repealed by1971 c.655 §250]

 

      772.120 [Repealed by1971 c.655 §250]

 

      772.125 [Amended by1953 c.160 §3; repealed by 1971 c.655 §250]

 

      772.130 [Repealed by1971 c.655 §250]

 

      772.135 [Repealed by1971 c.655 §250]

 

      772.140 [Repealed by1971 c.655 §250]

 

      772.145 [Repealed by1971 c.655 §250]

 

      772.150 [Repealed by1971 c.655 §250]

 

      772.155 [Repealed by1971 c.655 §250]

 

      772.160 [Repealed by1971 c.655 §250]

 

CONDEMNATIONBY PUBLIC UTILITIES AND ELECTRICAL COOPERATIVE ASSOCIATIONS

 

      772.205Definitions for ORS 772.210 and 772.215. As used in ORS 772.210 and 772.215,unless the context requires otherwise:

      (1)“Electrical cooperative association” means a cooperative association which issubject to a tax on gross revenue derived from the use or operation oftransmission and distribution lines pursuant to ORS 308.805 to 308.820.

      (2)“Public utility” has the meaning given that term in ORS 757.005.

      (3)“Service facilities” include any line, wire, pipe, conduit, main, pump, pole,tower, fixture, structure, shop, office or building for any use or purposereasonably necessary and incident to the conduct of the business of a publicutility.

      (4)“Transmission company” has the meaning given that term in ORS 758.015. [Amendedby 1971 c.655 §240; 1977 c.225 §1; 2001 c.913 §8]

 

      772.210Right of entry and condemnation of lands for construction of servicefacilities.(1) Any public utility, electrical cooperative association or transmissioncompany may:

      (a)Enter upon lands within this state in the manner provided by ORS 35.220 for thepurpose of examining, locating and surveying the line thereof and also otherlands necessary and convenient for the purpose of construction of servicefacilities, doing no unnecessary damage thereby.

      (b)Condemn such lands not exceeding 100 feet in width for its lines (includingpoles, towers, wires, supports and necessary equipment therefor) and inaddition thereto, other lands necessary and convenient for the purpose ofconstruction of service facilities. If the lands are covered by trees that areliable to fall and constitute a hazard to its wire or line, any public utilityor transmission company organized for the purpose of building, maintaining andoperating a line of poles and wires for the transmission of electricity forlighting or power purposes may condemn such trees for a width not exceeding 300feet, as may be necessary or convenient for such purpose.

      (2)Notwithstanding subsection (1) of this section, any public utility, electricalcooperative association or transmission company may, when necessary orconvenient for transmission lines (including poles, towers, wires, supports andnecessary 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 arecovered by trees that are liable to fall and constitute a hazard to its wire orline, such public utility or transmission company may condemn such trees for awidth not exceeding 100 feet on either side of the condemned land, as may benecessary or convenient for such purpose.

      (3)Notwithstanding subsection (1) of this section, a water or gas public utilitymay condemn such lands, not exceeding 50 feet in width, as may be necessary orconvenient for purposes of constructing, laying, maintaining and operating itslines, including necessary equipment therefor.

      (4)The proceedings for the condemnation of such lands shall be the same as thatprovided in ORS chapter 35, provided that any award shall include, but shallnot be limited to, damages for destruction of forest growth, premature cuttingof timber and diminution in value to remaining timber caused by increasedharvesting costs. [Amended by 1963 c.138 §1; 1971 c.655 §241; 1977 c.225 §2;2001 c.913 §9; 2003 c.477 §10]

 

      772.215Appropriation of public lands. When it is necessary or convenient, inthe location of any poles or lines mentioned in ORS 772.210, to appropriate anypart of any public road, street, alley or public grounds not within thecorporate limits of any municipal corporation, the county court or board ofcounty commissioners of the county within which such road, street, alley orpublic grounds is located, may agree with the public utility or electricalcooperative association upon the extent, terms and conditions upon which thesame may be appropriated or used and occupied by such corporation. If suchparties are unable to agree, the public utility or electrical cooperativeassociation may condemn so much thereof as is necessary and convenient in thelocation and construction of the poles or lines. The provisions of ORS chapter35 are applicable to condemnations under this section. [Amended by 1971 c.655 §242;1971 c.741 §24; 1977 c.225 §3]

 

      772.220 [Repealed by1