STATE DEPT. OF TRANS. v. MONTGOMERY WARD DEV.

A8001-00003, A8001-00004; A8001-00005; CA A30941.

719 P.2d 507 (1986)

79 Or.App. 457

STATE of Oregon, By and Through its DEPARTMENT OF TRANSPORTATION, Respondent, v. MONTGOMERY WARD DEVELOPMENT CORPORATION, a Delaware corporation; Emigrant Savings Bank, a New York banking corporation; Montgomery Ward & Co., Inc., an Illinois corporation; Ted R. Boyd and Janet L. Boyd; Michael E. Bye and Jacqueline Bye; Lincoln Savings and Loan Association, an Oregon corporation; Ruth O. Olson; Doris O. Stephenson; Arthur A. Olson, Jr.; and The Northern Trust Company, as Co-Trustees; C.E. Thompson, Inc., an Indiana corporation; and KFC National Management Company, a Delaware corporation, Defendants, First Union Real Estate Equity & Mortgage Investments, a business trust organized and existing under the laws of the State of Ohio; First Union Commercial Properties Expansion Co., a Delaware corporation; First Union Management, Inc., a Delaware corporation; Richard M. Cohen; Morris Weissman; and Richard M. Cohen and Morris Weissman, partners, doing business as C & W Associates, Appellants. STATE of Oregon, By and Through its DEPARTMENT OF TRANSPORTATION, Respondent, v. Richard M. COHEN; Morris Weissman; and Richard M. Cohen and Morris Weissman, doing business as C & W Associates; First Union Real Estate Equity & Mortgage Investments, a business trust organized and existing under the laws of the State of Ohio; First Union Commercial Properties Expansion Co., a Delaware corporation; First Union Management, Inc., a Delaware corporation, Appellants, Montgomery Ward Development Corporation, a Delaware corporation; Montgomery Ward & Co., Incorporated, an Illinois corporation; Ted R. Boyd and Janet L. Boyd; Michael E. Bye and Jacqueline Bye, Lincoln Savings and Loan Association, an Oregon corporation; Ruth O. Olson, Doris O. Stephenson, Arthur A. Olson, Jr., and The Northern Trust Company, as Co-Trustees; C.E. Thompson, Inc., an Indiana corporation; KFC National Management Company, a Delaware corporation; and Multnomah County, a political subdivision of the State of Oregon, Defendants.

Court of Appeals of Oregon.

Decided May 21, 1986.

Reconsideration Denied July 11, 1986.


Attorney(s) appearing for the Case

Susan P. Graber, Portland, argued the cause for appellants First Union Real Estate Equity & Mortgage Investments, First Union Commercial Properties Expansion Co., and First Union Management., Inc. With her on the briefs were Jeffrey M. Alden and Rives Kistler, and Stoel, Rives, Boley, Fraser & Wyse, Portland.

James H. Clarke, Portland, argued the cause for appellants Richard M. Cohen, Morris Weissman, and Richard M. Cohen and Morris Weissman, partners, doing business as C & W Associates, Portland. With him on the briefs were Robert E. Maloney, Jr., Lindsey H. Hughes, and Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the briefs were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Solicitor General, John R. McCulloch, Jr., Chief Trial Counsel, and Richard D. Wasserman, Asst. Atty. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.


WARREN, Judge.

Defendants are owners of real property on which Mall 205, a shopping center in east Multnomah County, is located. The state commenced this eminent domain proceeding to acquire a portion of defendants' land to construct an access road to Interstate 205 (I-205). The plans for the access road called for relocating S.E. 96th Avenue in a diagonal across defendants' land, dividing the property in two. The new road severs a triangle of approximately 4.2 acres...

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