Adams v. City of Toledo

• Decision Date: 05 December 1939
• Citation: 96 P.2d 1078,163 Or. 185
• Parties: ADAMS ET UX. <I>v.</I> CITY OF TOLEDO ET AL.
• Court: Oregon Supreme Court

163 Or. 185

96 P.2d 1078

ADAMS ET UX.

v.CITY OF TOLEDO ET AL.

Supreme Court of Oregon.

Argued November 7, 1939.

Reversed December 5, 1939.

Municipal corporations — Pleading — Tort of city

1. In action against municipality for destruction by fire of plaintiffs' building, amended complaint which alleged that common council of municipality did the things comprising the alleged tortious conduct upon which plaintiffs' case was based sufficiently charged municipality, in view of municipality's charter and practical construction thereof.

Municipal corporations — Nuisance — Abatement

2. Alleged conduct of municipality in setting fire to unoccupied building, from which fire spread to plaintiffs' building, for purpose of abating public nuisance by burning unoccupied building, was "not ultra vires," in view of municipal charter authorizing city to prevent and remove nuisances.

Municipal corporations — Nuisance — Liability

3. A municipality in setting fire to unoccupied building for purpose of abolishing public nuisance by burning it was acting in its "political or governmental capacity," but such fact did not necessarily exempt city from liability for damages which occurred when fire spread to adjoining building.

Municipal corporations — Tort — Damages

4. Even in the performance of a "governmental act," if municipality is guilty of active wrongdoing, there is no immunity from damages resulting from such active wrongdoing.

Municipal corporations — Nuisance — Damages

5. A municipality, even in performance of a "governmental act," is not immune from liability for damages occurring as result of municipality's creating or maintaining a nuisance.

Municipal corporations — Pleading — Tort of city

6. In action against municipality for destruction by fire of plaintiffs' building, amended complaint which alleged that city fire chief, under direction of common council, set fire to unoccupied building for purpose of abating public nuisance by destroying it, and that fire spread to plaintiffs' building, charged an active wrongdoing of municipality, as distinguished from negligence, which resulted in a temporary nuisance and was sufficient as against general demurrer.

Nuisance — Public nuisance

7. A "public" nuisance is one that affects the rights enjoyed by citizens as part of the public.

Nuisance — Private nuisance

8. A "private nuisance" is anything done to the hurt, annoyance, or detriment of the lands or hereditaments of another, not amounting to a trespass.

Nuisance — Public and private

9. The same act or structure may be a "public nuisance," and also a "private nuisance" as to a person who is thereby caused a special injury other than that inflicted upon the general public.

Municipal corporations — Nuisance — Liability

10. A city has no more right than an individual to create a nuisance, and if it does so, it is subject to the same liability as an individual.

  Municipal immunity from liability for Tort, note, 120 A.L.R
                1376. See also, 19 R.C.L. 1081 (7 Perm. Supp., 4754)
                  43 C.J. Municipal Corporations, § 1736
                

Department 1.

Appeal from Circuit Court, Lincoln County.

CARL E. WIMBERLY, Judge.

Action by Leonard M. Adams and Tillie Adams, husband and wife, against the City of Toledo, a municipal corporation, and Owen Hart, to recover damages for destruction by fire of a building owned by plaintiffs.From an order sustaining a general demurrer of defendant city to plaintiffs' amended complaint, and ensuing judgment of dismissal, as to defendant city, the plaintiffs appeal.

REVERSED.

William P. Lord, of Portland (T. Walter Gillard and Ben C. Fleischman, both of Portland, on the brief), for appellants.

W.H. Waterbury and Earl P. Conrad, both of Toledo (G.B. McCluskey, of Toledo, on the brief), for respondents.

KELLY, J.

The amended complaint discloses that defendantCity of Toledo is a duly incorporated city in Lincoln county, Oregon, maintaining a fire department and employing a fire chief; that plaintiffs are the owners of certain real property lying immediately west of and fronting upon Railroad street in said defendant city; that until the same was destroyed by the fire hereinafter mentioned, there was upon said parcel of real property a frame or wooden building used by plaintiffs for residential and commercial purposes.

The further pertinent allegations in plaintiffs' amended complaint are as follows:

"III

"That prior to and until the same was destroyed by fire as hereinafter alleged there was situated upon the westerly side of said Railroad street, within said city of Toledo, a certain other two-story or frame building which, on the 13th day of July, 1937, was very dry, unoccupied and vacant except that it was largely filled with dry wooden boxes, paper and other inflamable rubbish, said building being situated south of and within approximately 50 feet of the building occupied by plaintiffs and within such close proximity thereto that fire set therein and allowed to consume the same would be likely to spread to and destroy said building occupied by plaintiffs, all of which was on and prior to the 13th day of July, 1937, well known, or by the use of due diligence should have been known to the common council of said city of Toledo and Owen Hart.

IV

That on the 13th day of July, 1937, said Owen Hart and for more than three months last prior thereto had been employed by said city of Toledo as Fire Chief to direct the operations of its fire department, and that on or prior to said date, the exact time being to plaintiff unknown, the common council of said city of Toledo ordered and directed said Owen Hart to destroy said unoccupied building for the reason that the same was a fire menace or hazard and dangerous to said city of Toledo; and that thereafter and on said 13th day of July, 1937, said Owen Hart, after having first saturated said boxes, paper and other rubbish within said building with a large quantity of gasoline, kerrosene or other inflamable liquid, the nature of which is to plaintiff unknown, did negligently, carelessly, wrongfully, unlawfully, and with reckless disregard for and indifference to the rights of this plaintiff, kindle and set a fire in said materials so saturated with inflamable liquid for the purpose of destroying said building, without having the fire department of said city of Toledo or any fire-fighting apparatus of any kind on hand and without taking any precaution or making any preparation of any kind to control said fire or to prevent it from spreading to and destroying plaintiff's said property, all with the knowledge, consent, and under the authority and direction of the common council of...