dissenting.
The majority decides that defendants are not entitled to: (1) damages for the cost of removing unattached personal property from the real property taken; (2) damages for consequential injury to unattached personal property; (3) damages resulting from relocation of personal property; or (4) for loss of profits to their cattle operation. Since defendants do not claim damages on any of those grounds, I dissent and remind the majority to "look for the doughnut, not the hole.”
Defendants’ claim, alleged separately as one for "special damages,” is that plaintiffs taking possession of the real property, which was defendants’ feedlot, in the dead of winter and without sufficient notice to permit defendants to move their cattle to an adequate alternative site, resulted in cattle losses which amounted to a taking for which they are entitled to just compensation. After plaintiffs motion to strike the claim for "special damages” was denied, it filed a reply alleging adequate notice to defendants. By special verdict, the jury awarded defendants $1500 for "special damages to livestock during 1974 caused by the construction of the counterbalance/^
Defendants concede the general rule to be that compensation is to be determined as of the date the action is filed, or possession is taken, whichever first occurs, since future damage, if any, is speculative. However, they contend that where, as here, construction on the condemned property is completed and the special damages have been ascertained before the proceedings are commenced, both the damages for the taking and special damages caused during construction may be litigated in the condemnation proceeding to avoid a multiplicity of actions. They rely on La Grande v. Rumelhart et al., 118 Or 166, 246 P 707 (1926), and Calif.-Pacific Utilities v. Barry, 254 Or 344, 460 P2d 847 (1969).
In Rumelhart, the condemnation proceeding was commenced after construction of the highway was *421completed. The defendants alleged that they had suffered certain "special damages” in addition to the value of the property taken and diminution in value to the remainder. The Supreme Court affirmed the trial court’s denial of plaintiff’s motion to strike those allegations, and in doing so, the court stated:
"* * * Among these causes for special damages are the destruction of fences, the expense of fencing the tract along the highway, the destruction of some fruit trees, a stone cellar used for coldstorage purposes in the summer and protection from the extreme cold in the winter; the deposit of large stones upon the garden and in the door yard, the shoveling of snow from the highway upon the premises of the defendants below the same, the inconvenience caused the defendants by travel on the highway from dust, fumes from gasoline and oil, and the annoyance from the lights of the automobiles flashing into the interior of the dwelling. It is the contention of the plaintiff that the defendants can recover in this action only the actual value of the land taken and the diminished value of the parts of the tract remaining. On the other hand, the defendants claim that inasmuch as the highway has been constructed they are entitled to recover in this action not only the actual value of the land taken, plus the difference in the market value of the parts of the tract remaining after the construction of the highway, but also such incidental damage as resulted to the defendants from the construction of the highway. There is conflict in the authorities. * * *” 118 Or at 172.
After discussing the apparent conflicts, the court held:
"We believe the better rule would be that where the improvement has been completed before the action has been brought to determine the damages, all elements of damage directly flowing from the appropriation and the construction of the improvement should be determined. We can see no good reason for compelling the person whose land is taken for a public improvement to resort to an independent action to recover damages incidental to but directly resulting from the construction. Where the action to condemn is tried before the actual appropriation, nothing but the value of the land taken and the injury to the remaining parts of the tract should be *422considered. Other elements would be speculative. But where the actual appropriation has been made and the improvement constructed, the actual damages resulting can as well be ascertained and determined in an action to condemn as in a separate action on trespass.* * *” 118 Or at 174.
In Barry, the Supreme Court acknowledged the rule as set forth in Rumelhart, but held that defendant had not alleged a right to special damages in his answer, and therefore could not litigate them in that proceeding.
The majority, on the other hand, states that no compensation may be awarded for personal property that has not been affixed to the land. Highway Comm, v. Superbilt Mfg. Co., supra. That case, however, did not involve a loss of the personal property by virtue of the timing and manner of plaintiffs taking; Superbilf s contention was that the cost of disassembling, crating and moving machinery and equipment, and reinstalling it in a new location was part of the fair cash value of the real property taken. Defendants make no such claim here, and Superbilt is irrelevant. The majority also states that State Highway Com. v. Vella, 213 Or 386, 323 P2d 941 (1958), and Berman Corp. v. State Hwy. Comm., 24 Or App 813, 547 P2d 192, rev den (1976), are contrary to defendants’ position here. I see no relevance to either case. In Vella, defendant claimed that loss of profits in his business were a part of the depreciation in market value of the remainder of his property not taken; the Court properly held they were not. In Berman, an inverse condemnation case, we held that a temporary interference with a public access to plaintiff’s service station did not constitute a taking.
A more apt analogy appears in Coos Bay Oyster Coop. v. Highway Com., 219 Or 588, 348 P2d 39 (1959). In that inverse condemnation proceeding, plaintiff claimed compensation for the taking of planted oysters taken by defendant when it constructed a highway over the oyster beds. The Highway Commission had *423already paid for the land (the oyster beds) and contended the planted oysters were a part of the real property already acquired. The Supreme Court held the planted oysters were personal property, for which compensation in addition to the value of the land must be paid. The majority would have us believe there is a "distinction” because "[i]n Coos Bay there was an actual taking of the owner’s oysters. In the instant case there was no such taking.” 35 Or App at 419. I respectfully submit that if there was an actual taking in Coos Bay it occurred not because the Highway Commission intended or desired to "take,” but because it deprived the owner of the oysters by paving over the beds, to no benefit of the Commission. The same is true here: the plaintiff has deprived defendants of the cattle lost by virtue of the manner and timing of the taking of the real property pursuant to the power of eminent domain. The fact is that a taking pursuant to the power of eminent domain is subject to the obligation to pay just compensation, even though the taking may have been unintended or negligent.1
*424The only question presented is whether defendants’ theory is valid, not whether the evidence was sufficient to support it. It seems clear to me that the theory is valid, and the fact that it results in an unintended taking of personal property makes no difference. If the plaintiff had taken defendants’ deep freeze plant without sufficient notice to permit a transfer of the frozen foods to another suitable facility resulting in a total loss of the frozen foods, can there be any doubt that plaintiff had taken defendants’ property within the meaning of Art I, § 18, Oregon Constitution?* 2 That provision is not limited to the taking of real property. Coos Bay Oyster Coop. v. Highway Com., supra. As the Supreme Court observed in Tomasek v. Oregon Highway Com’n, 196 Or 120, 143, 248 P2d 703 (1952):
"The constitutional right and protection given the owner of property by art. 1, § 18, Oregon Const., supra, is unquestionably self-executing. It is an absolute right, and, for its violation, the injured person may have his remedy in common-law action in the absence of statutory provision therefor. This remedy should not be, nor is it, dependent upon legislative action. It is manifest that the legislature has no power to abrogate or deny a constitutional right, nor may a right that is constitutionally granted be taken away or rendered nugatory by failure of the legislature to act. * * *”
Here, the theory of defendants is that the state deprived them of their cattle under circumstances *425which constituted a taking. Plaintiff may not avoid liability on the theory that although the property was taken, plaintiff did not intend to take it.
Because the only assignment of error is the denial of plaintiffs motion to strike defendants’ allegations of "special damages,” it is not necessary to decide whether such damages may be tacked on to the amount awarded as just compensation for the taking of the real property for the purpose of determining defendants’ right to attorney fees and reasonable expenses under ORS 35.346(2).
I would affirm.
See Cereghino et at v. State Highway Com., 230 Or 439, 443, 370 P2d 694 (1962), which involved damage to plaintiffs land by flooding, where the Supreme Court said:
“These are not tort actions. * * * The plaintiffs are seeking to recover compensation for private property taken by the state for a public use. * * *”
Cf. Lanning v. State Hwy. Comm., 15 Or App 310, 515 P2d 1355 (1973), in which plaintiff claimed damages resulting from the negligent failure to remove debris from the base of a bridge, which caused water to back up onto plaintiffs land. The state in that action contended, "plaintiffs have a remedy, if at all, in inverse condemnation and therefore no remedy in tort.” 15 Or App at 318. This court responded:
"This theory of recovery [inverse condemnation] overlaps with liability in tort. Courts have allowed recovery on the theory of inverse condemnation in many instances as a means to avoid the concept of sovereign immunity. Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn L Rev 1047, 1058 (1968); Van Alstyne, Modernizing Inverse Condemnation: A Legislative Prospectus, 8 Santa Clara Lawyer 1, 10 (1967); 3 Davis, Administrative Law Treatise § 25.05 (1958).
"While inverse condemnation may have, developed as a remedy because of the existence of sovereign immunity, the removal of *424sovereign immunity means, under appropriate circumstances, that alternative remedies now exist for a plaintiff whose property may have been damaged by the tortious act of a public body. The fact that plaintiffs may have an alternative remedy is no grounds for finding the remedy he has chosen should not lie.” 15 Or App at 319.
Art I, § 18, Oregon Constitution provides:
"Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.”