Smejkal v. Empire Lite-Rock, Inc.

• Decision Date: 02 April 1976
• Docket Number: INC,LITE-ROC
• Parties: James A. SMEJKAL, Appellant, v. EMPIRE, an Oregon Corporation, and Allied Equities Corporation, a Nevada Corporation, dba Empire Building Company, Respondents.
• Court: Oregon Supreme Court

Page 1363

547 P.2d 1363

274 Or. 571

James A. SMEJKAL, Appellant, v. EMPIRE LITE-ROCK, INC., an Oregon Corporation, and Allied

Equities Corporation, a Nevada Corporation, dba

Empire Building Company, Respondents.

Supreme Court of Oregon.

Argued and Submitted Dec. 4, 1975.

Decided April 2, 1976.

Gary D. Rossi, Coos Bay, argued the cause and filed briefs for appellant.

William L. Hallmark, Portland, argued the cause for respondents. With him on the brief were Jones, Lang, Klein, Wolf & Smith and Frederic A. Yerke, Miller, Anderson, Nash, Yerke & Wiener, Portland.

Before McALLISTER, P.J., and HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

McALLISTER, Justice.

Plaintiff, James A. Smejkal, brought this action for alleged injury to his real property and growing timber thereon caused by air contaminants and emissions emanating from defendants' nearby rock processing plant. Smejkal alleged that the emissions from defendants' plant exceeded permissible safe levels of pollution established by the Columbia-Willamette Air Pollution Authority. Smejkal had owned his land since July 1, 1964.

Defendant Empire Lite-Rock, Inc., an Oregon corporation, had owned and operated the plant from 1947 until September 30, 1971, when it voluntarily dissolved and conveyed all of its assets to Allied Equities Corporation, a Nevada corporation, which has continued to operate the plant under the assumed business name of Empire Building Material Company.

The defendants' answer alleged two separate affirmative defenses. The first alleged that the statute of limitations barred liability for any acts done more than six years prior to the filing of the complaint. The second affirmative defense alleged that defendants had acquired a prescriptive easement by continuous uninterrupted adverse, open and notorious use of plaintiff's lands for more than ten years prior to the filing of the action.

Smejkal's reply admitted the first affirmative defense, but denied the second. Defendants then moved for a judgment on the pleadings, which motion was granted and judgment was entered for defendants. Plaintiff appeals.

The only issue is whether a prescriptive right to pollute land can be acquired against a private landowner for activities complained of which also constitute a public nuisance.

Defendants contend that their activities have been continuous since 1947 and that their prescriptive rights became vested in 1957.

Although plaintiff has entitled his action as one at law for trespass, his complaint alleges only that defendants have caused certain slate dust of a noxious nature to emanate from their plant, which dust has become airborne and that portions thereof have been deposited upon plaintiff's land and damaged and destroyed plant life and timber thereon.

It is not necessary that we decide whether this is an action for trespass or for nuisance or for both. As we said in Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 90, 342 P.2d 790, 792 (1959):

'Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land. They may be distinguished by comparing the interest invaded; an actionable invasion of a possessor's interest in the exclusive possessor's of land is a trespass; an actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance. 4 Restatement, Torts 224, Intro. Note Chapter 40.

'The same conduct on the part of a defendant may and often does result in the actionable invasion of both of these interests, in which case the choice between the two remedies is, in most cases, a matter of little consequence. * * *'

The term 'nuisance' itself is used to describe the invasion of two disparate rights. Where the invasion is of a right common to members of the public generally it is called a 'public nuisance.' Raymond v. Southern Pacific Co., 259 Or. 629, 634, 488 P.2d 460 (1971). The same conduct may result in both a private and a public nuisance. In order to maintain an action on account of a public nuisance a private party must show that he has sustained an injury of a special character distinct and different from that suffered by the public generally. Raymond v. Southern Pacific Co., supra, 259 Or. at 634, 488 P.2d 460. Wilson v. City of Portland, 153 Or. 679, 687, 58 P.2d 257 (1936). Substantial harm is necessary to liability for private nuisance. Phillips Ranch, Inc. v. Banta, 273 Or. ---, ---, 543 P.2d 1035, 1038 (1975).

Defendants admit in their brief that their operation of the plant might constitute a public nuisance, depending on the quantity of particulates emanated, the pattern of distribution and the nature of the surrounding area. These would be questions for the finder of fact. Plaintiff's complaint alleges sufficient facts to establish that he has suffered substantial injury of a special nature as distinguished from the public generally. Plaintiff, therefore, has sufficiently stated a cause of action.

Defendants contend that they have acquired an easement by prescription to maintain a private nuisance against the plaintiff so as to bar his action for damages. On the other hand, plaintiff contends that because the defendants' activities also constitute a public nuisance, an easement cannot be acquired so as to defeat his private cause of action.

As a general rule, one cannot acquire a prescriptive right to maintain a public nuisance no matter how long it has continued. But an easement by prescription can be acquired for a private nuisance. Arrien v. Levanger, 263 Or. 363, 372, 502 P.2d 573 (1972); Sweet et al. v. Irrigation Canal Co., 198 Or. 166, 196, 254 P.2d 700, 256 P.2d 252 (1953).

By the great weight of authority where the activity complained of constitutes both a public and private nuisance, prescriptive rights will not run against the private individual even where he is suing for damages personal to himself. The rule is stated in Restatement of Torts 2d, § 821C and Comment e as follows:

'S 821C. WHO CAN RECOVER FOR PUBLIC NUISANCE

'FOR A PUBLIC NUISANCE THERE IS LIABILITY IN TORT ONLY TO THOSE WHO HAVE SUFFERED HARM OF A KIND DIFFERENT FROM THAT SUFFERED BY OTHER MEMBERS OF THE PUBLIC EXERCISING THE PUBLIC RIGHT.

* * *

* * *

'e. Private nuisance. Where the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiff's land, it is a private nuisance as well as a public one. In such a case the harm suffered by the plaintiff is of a different kind, and he can maintain an action not only on the basis of the private nuisance itself, but also, if he chooses to do so, on the basis of the particular harm from the public nuisance. One important advantage of the action grounded on the public nuisance is that prescriptive rights, the statute of limitations, and laches do not run against the public right, Even when the action is brought by a private person for particular harm.' (Emphasis added.)

See, also, cases cited at page 39 in support of Comment e.

The effect of these general rules was explained in Laurance at al. v. Tucker, 160 Or. 474, 479--480, 85 P.2d 374, 376 (1938):

'* * * We think, however, that the other allegations contained in the answer that the defendant has been in the open, notorious, hostile, and exclusive possession of the space occupied by the drain would, if established to have been done under a claim of ownership and continuously for a period of 10 years be sufficient to create title by prescription. However, that whould not be the case if the acts complained of constituted a public nuisance or affected the public, or any considerable part of it, injuriously, since the statute of limitations does not run against a public nuisance no matter how long continued. If, however, the nuisance was a private nuisance and Affected only the owner of the premises trespassed upon, it would seem that the open, notorious and exclusive possession of the land covered by the ditch continuously for a period of 10 years under a claim of ownership would be sufficient to constitute adverse user as to the ground so occupied. * * *' (Emphasis added.)

Sweet et al. v. Irrigation Canal Co., supra, involved a fact situation similar to the case at bar. In that case plaintiffs sought an injunction and damages against the defendant for maintenance of an open ditch on abutting land. The defendant argued, Inter alia, that it had acquired a prescriptive right to maintain the ditch. This court held that, where plaintiffs were complaining in their private capacity as landowners whose rights of ingress and egress were interfered with and the ditch was also a public nuisance, the plaintiffs had not lost their rights through the passage of time. 198 Or. at 196, 254 P.2d 700, 256 P.2d 252.

There are numerous cases from other jurisdictions which hold similarly. Elves v. King County, 49 Wash.2d 201, 299 P.2d 206 (1956), involved a private landowner who brought suit to enjoin a municipality from casting water through a culvert onto plaintiff's property. The trial court issued the injunction, finding the municipality's activities both a public and private nuisance. The municipality claimed an easement, but the Supreme Court of Washington summarily dismissed this contention 'because the right to maintain a public nuisance cannot be acquired by prescription.' 299 P.2d at 206.

In Gundy v. Village of Merrill, 250 Mich. 416, 230 N.w. 163 (1930), the plaintiffs claimed that defendant creamery and defendant city were discharging wastes into an open drain which ran across their farm and stagnated in fromt of their home. The plaintiffs sought an injunction and damages. The defendants asserted, Inter alia, that they had acquired a prescriptive right to continue their use of the drain. The court found that use constituted a public nuisance and, as such, no prescriptive right to maintain it could be acquired. 230 N.W. at 163. A judgment for the plaintiff was affirmed.

See, also, ...