613 P.2d 63 (Or.App. 1980), CA 15104, Lunda v. Matthews

Docket Nº:22488; CA 15104.
Citation:613 P.2d 63, 46 Or.App. 701
Opinion Judge:RICHARDSON, P.J.
Party Name:Orris H. LUNDA and Velda Mae Lunda, husband and wife, Respondents, v. Troy MATTHEWS, Larry T. Matthews and Dwayne Steel, dba LaPine Readi-Mix, Appellants, Michael R. Shields, Defendant.
Attorney:William M. Holmes, Bend, argued the cause for appellants. With him on the brief was Gray, Fancher, Holmes & Hurley, Bend. William E. McCann, Bend, argued the cause and filed the brief for repondents.
Case Date:June 23, 1980
Court:Court of Appeals of Oregon
 
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Page 63

613 P.2d 63 (Or.App. 1980)

46 Or.App. 701

Orris H. LUNDA and Velda Mae Lunda, husband and wife, Respondents,

v.

Troy MATTHEWS, Larry T. Matthews and Dwayne Steel, dba

LaPine Readi-Mix, Appellants,

Michael R. Shields, Defendant.

No. 22488; CA 15104.

Court of Appeals of Oregon.

June 23, 1980

Page 64

Argued and Submitted April 25, 1980.

Page 65

[46 Or.App. 702] William M. Holmes, Bend, argued the cause for appellants. With him on the brief was Gray, Fancher, Holmes & Hurley, Bend.

William E. McCann, Bend, argued the cause and filed the brief for respondents.

Before RICHARDSON, P. J., THORNTON, J., and SCHWAB, C. J. [*]

[46 Or.App. 703] RICHARDSON, Presiding Judge.

This is an appeal from a judgment in favor of plaintiffs, private landowners, granting damages and injunctive relief in an action for trespass and private nuisance against defendants who operate a cement plant. The evidence viewed in the light most favorable to plaintiffs, who are aided by the verdict, shows the following.

In 1959 plaintiffs purchased their property in a residential/recreational area of LaPine. In 1970, after husband retired, they built a home there and began using the property as their residence. One of the plaintiffs' purposes in moving to LaPine was the clean area. In 1976 defendants constructed the LaPine Readi-Mix Plant about 180 feet north of plaintiffs' house in an area zoned M-2 Industrial. To the north of defendants' plant lies a pole mill where bark is peeled from log poles. 1

In 1978 defendants added a cement storage silo to their plant. After the silo was constructed defendants began to receive large shipments of dry cement rather than the bagged cement they previously used. The dry cement shipments arrive about every 10 days by tractor-trailer. Deliveries are often at night. The dry cement is blown into the silo from the trailer. As it is blown in, clouds of cement dust permeate the air. This dust is so thick that one cannot see the outline of trees in the area. During the pumping process, vibrators shake the cement down inside the silo. If this process fails, a jack hammer is used to pound on the sides of the silo to pack the cement. The unloading process is very noisy. It takes about two hours to unload a trailer.

The plant begins its operations around 7:00 a. m. but has been known to start as early as 4:00 a. m. Usually five truckloads of ready-mix concrete are carried out of the plant each day. Trucks loaded with [46 Or.App. 704] gravel also make deliveries to the plant. The gravel is dumped onto the ground and then is loaded into the cement trucks to be mixed with the cement and water.

These various trucks all pass directly by plaintiffs' residence, raising dust which blows into plaintiffs' home. The defendants generally do not water the access road until after 5:30 in the evening when the delivery trucks are washed out. The Department of Environmental Quality contacted defendants after plaintiffs lodged a complaint and cautioned defendants to water more frequently.

Plaintiffs' first count in trespass complained that the cement dust, road dust, noise pollution and diesel fumes emanating from defendants' readi-mix plant interfered with the exclusive possession of their land. They also complained that defendants' use of their property unreasonably interfered with the use and enjoyment of plaintiffs' property and created a private nuisance. In addition to diminished land values, plaintiffs sought damages for inconvenience, annoyance, physical discomfort and mental distress. They also sought injunctive relief.

The jury returned a verdict for $5,000 damages and the court, by way of injunction, required defendants to water the roadway and plant area traversed by motor

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vehicles to the extent necessary to control the dust, and enjoined defendants from operating the plant or receiving deliveries between the hours of 10:00 p. m. and 6:00 a. m. and all day on Sunday.

Defendants, in their first assignment of error, contend that there was no evidence of either intentional or negligent trespass and that their motion for directed verdict on Count I should have been granted. Where defendants appeal from the denial of a motion for directed verdict we review the evidence in the light most favorable to the plaintiffs. City of Rogue River v. DeBoer, 288 Or. 485, 488, 605 P.2d 697 (1980).

[46 Or.App. 705] Deposit on a person's land of airborne particles emanating from a neighboring plant has been held to be an invasion of that person's right to the exclusive possession of land. E. g., Reynolds Metals Company v. Martin, 337 F.2d 780 (9th Cir. 1964); Renken v. Harvey Aluminum (Incorporated), 226 F.Supp. 169 (D.Or.1963); Smejkal v. Empire Lite-Rock, Inc., 274 Or. 571, 579, 547 P.2d 1363 (1976); Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 342...

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