Amphitheaters, Inc. v. Portland Meadows

Decision Date19 October 1948
Citation198 P.2d 847,184 Or. 336
PartiesAMPHITHEATERS, INC. <I>v.</I> PORTLAND MEADOWS, A CORPORATION
CourtOregon Supreme Court
                  See 46 C.J., Nuisance, § 201
                  144 A.L.R. 1261
                  39 Am. Jur. 307
                

Appeal from the Circuit Court, Multnomah County.

FRANK C. HOWELL, Judge.

James Arthur Powers, of Portland, and Byron C. Congdon, of Seattle, Washington, argued the cause for appellant. With them on the brief was Kenneth Kraemer, of Portland.

Vern Dusenbery, of Portland, argued the cause for respondents. On the brief were Crum, Dusenbery and Martin, of Portland.

Before ROSSMAN, Chief Justice, and LUSK, KELLY, BAILEY and BRAND, Justices.

Action at law by Amphitheaters, Inc., as operator of a drive-in open air motion picture theater, against Portland Meadows, a corporation, as operator of an adjoining race track for horses, which track was brilliantly lighted for night racing. The charge is that the lights from the track destroy the natural darkness on the plaintiff's property, rendering it impossible successfully to show outdoor moving pictures, and thus constitute a trespass, or in the alternative, a nuisance for which damages are sought. From a judgment based on a directed verdict for the defendant, plaintiff appeals.

AFFIRMED.

BRAND, J.

At the trial, evidence to the following effect was introduced. During the summer of 1945 the defendant commenced arrangements for the purchase of land and the construction thereon of a one-mile race track. On 25 August, 1945, an option for the purchase of 21 acres of the required land was secured from H.M. Seivert who is one of the promoters of the theater project and is the owner of the land on which the theater is situated. On 15 October, 1945, defendant applied for a license to operate a race meet to be held in May, 1946, and the license was issued. In October and early November, 1945, extensive newspaper publicity was given to the race track project, featuring the fact that the property would be lighted for night racing. On 15 October, 1945, a contractor was employed to plan and construct the race track and the facilities incidental thereto. Grading was commenced in November and the work was continued until the project was completed on 14 September, 1946.

During the fall of 1945 the land on which the plaintiff's theater is located was being prepared and equipped for night auto racing by Northwest Sports, Inc., an activity which, like that of defendant, would have involved the use of flood lights. On 29 November, 1945, a lease agreement was executed between Northwest Sports, Inc. and the promoters of the plaintiff corporation, entitling the lessees and their assignee, Amphitheaters, Inc., to construct and operate a drive-in outdoor motion picture theater upon the property adjoining the race track of defendants. But the lease provided that the operation of the theater must not interfere with the operations of the same property for auto racing. Plans for the construction of the theater were turned over in March, 1946, and construction was commenced in May or June of that year. At least some of the promoters of the theater project knew that the race track was to be lighted for night racing, though they may not have known the volume or extent of the proposed lighting.

The outdoor theater was completed and commenced operating on 31 August, 1946. The race track was completed and the first races held fifteen days later. The plaintiff invested $135,000 in the construction of the outdoor theater and sums greatly in excess of that amount were expended by the defendant in the development of the race track and facilities. The lighting facilities alone involved an investment by the defendant of $100,000. The two tracts operated by plaintiff and defendant respectively are located just north of the city limits of Portland, Oregon. They adjoin and lie between two arterial highways, Denver Avenue and Union Avenue. The defendant's track consists of a mile-long oval extending in a general northerly and southerly direction. The auto race track which encloses the plaintiff's moving picture amphitheater lies between Union Avenue and the Northeast curve of the defendant's oval track. Union Avenue runs in a northwesterly direction along and parallel to the plaintiff's property of which it forms the northeasterly boundary. The theater screen, approximately 40 feet high and 50 feet wide, is backed up against the westerly line of Union Avenue and faces slightly south of west and directly toward the defendant's race track. At the trial a photograph showing the relative positions of the two properties and the nature of the adjacent territory was offered in evidence by the plaintiff and received without objection. It fairly represents the true situation. It is reproduced as a part of this opinion to illustrate the facts giving rise to our problem. The picture was taken from a point on defendant's property. The northeasterly portion of defendant's oval track appears in the foreground. The camera was aimed directly at the screen of plaintiff's theater. Far better than words, the picture indicates the character of the area in which the two properties are located.

In installing outdoor moving picture theaters, it is necessary to protect the premises from outside light interference. For that purpose the plaintiff constructed wing fences for a considerable distance on each side of the screen and along the westerly line of Union Avenue for the purpose of shutting off the light from the cars traveling on that arterial highway. It was also necessary to construct a shadow box extending on both sides and above the screen for the purpose of excluding the light from the moon and stars. The testimony indicates that the construction of the shadow box was necessary if a good picture was to be presented on the screen. The extreme delicacy of plaintiff's operation and the susceptibility of outdoor moving pictures to light in any form was conclusively established by the evidence.

In order to illuminate the defendant's track...

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42 cases
  • Thornburg v. Port of Portland
    • United States
    • Oregon Supreme Court
    • 7 Noviembre 1962
    ...P.2d 529 (1959).11 See Kellogg v. Mertens, (La.App.) 30 So.2d 777 (1947), and cases discussed in Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 (1948), where the plaintiffs sought damages at law for a nuisance from excessive lights. And see York et ux. v.......
  • Martin v. Williams, 10758
    • United States
    • West Virginia Supreme Court
    • 13 Marzo 1956
    ...does not unreasonably or substantially interfere with the ordinary use or enjoyment of property. See Amphitheatres, Inc., v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690. In that case recovery was denied the plaintiff, which operated an outdoor motion picture theatre, of dama......
  • Lloyd Corp., Ltd. v. Whiffen
    • United States
    • Oregon Supreme Court
    • 9 Mayo 1989
    ...221 Or. at 90, 342 P.2d 790. The court affirmed a judgment of damages for trespass. To do so, it had to distinguish Amphitheaters, Inc. v. Portland Meadows, supra, which had characterized light, smoke, noxious odors and the like as "nontrespassory invasions" and had sustained a directed ver......
  • Ainsworth v. Owenby
    • United States
    • U.S. District Court — District of Oregon
    • 17 Agosto 2018
    ...from "personal injury." Wilson v. City of Portland , 153 Or. 679, 58 P.2d 257, 259 (1936) ; see also Amphitheaters, Inc. v. Portland Meadows , 184 Or. 336, 198 P.2d 847, 851 (1948) (differentiating between claims involving, inter alia , "harm to human comfort" and "damages to the land itsel......
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1 books & journal articles
  • The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
    • United States
    • Land use planning and the environment: a casebook
    • 23 Enero 2010
    ...(or could) the court provide further clarification of their specific meanings? AMPHITHEATERS, INC. v. PORTLAND MEADOWS 184 Ore. 336, 198 P.2d 847 (1948) BRAND, Justice. . . . During the summer of 1945 the defendant commenced arrangements for the purchase of land and the construction thereon......

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