Amphitheaters, Inc. v. Portland Meadows

• Decision Date: 19 October 1948
• Citation: 198 P.2d 847,184 Or. 336
• Parties: AMPHITHEATERS, INC. <I>v.</I> PORTLAND MEADOWS, A CORPORATION
• Court: Oregon Supreme Court

184 Or. 336

198 P.2d 847

AMPHITHEATERS, INC.v.

PORTLAND MEADOWS, A CORPORATION

Supreme Court of Oregon.

Argued May 6, 1948.

Affirmed October 19, 1948.

Trespass — Unauthorized entry

1. Every unauthorized entry on land of another, though without damage, constitutes actionable "trespass".

See Words and Phrases, Permanent Edition, for all other definitions of "Trespass".

Trespass — Casting of light

2. The casting of light of about intensity of moonlight 832 feet onto screen of drive-in open air moving picture theater outside limits of city by corporation operation a night horse race track where there were numerous floodlights, so as to interfere with proper showing of moving pictures, was not actionable "trespass".

Property — Ownership — Land — Includes

3. Ownership of lands includes not only the face of the earth but everything under it or over it, and has in its legal signification an indefinite extent upward and downward giving rise to the maxim "cujus est solum ejus est usque ad coelum".

See Words and Phrases, Permanent Edition, for all other definitions of "Cujus Est Solum Ejus Est Usque Ad Coelum".

Trespass — Intentional — Without privilege

4. One who intentionally and without the privilege enter land, is a "trespasser".

See Words and Phrases, Permanent Edition, for all other definitions of "Trespasser".

Trespass — Air travel

5. Air travel over another's land is a "trespass" prima facie imposing liability, but rights of airplane travel are established or recognized by doctrine of privelege.

Nuisance — Consists of

6. "Nuisances" may consist of harm to human comfort, safety, or health by reason of maintenance by a defendant on his land of noxious or dangerous instrumentalities causing damage to plaintiff in respect to legally protected interests of plaintiff in his land, illegal or immoral practices, and acts outraging public decency, obstructions to streets, public ways, common rights, access to property and the like, and damage to land itself, as by flooding.

See Words and Phrases, Permanent Edition, for all other definitions of "Nuisance".

Nuisance — Question of fact — Jury

7. Generally, the existence or non-existence of a private nuisance is a question of fact for the jury.

Nuisance — Substantial and unreasonable interference

8. An intentional interference with the use and enjoyment of land is not actionable unless that interference be both substantial and unreasonable.

Nuisance — Ordinarily reasonable man

9. Whether a particular annoyance or inconvenience is sufficient to constitute a nuisance depends on its effect on an "ordinarily reasonable man," that is, a normal person of ordinary habits and sensibilities.

See Words and Phrases, Permanent Edition, for all other definitions of "Ordinarily Reasonable Man".

Nuisance — Use — Exceptional freedom from deleterious influences

10. No action will lie for a nuisance in respect of damage which, even though substantial, is due solely to the fact that the plaintiff is abnormally sensitive to deleterious influences, or uses his land for some purpose which requires exceptional freedom from such influences.

Nuisance — Interference with rights and privileges

11. One having property rights and privileges in land can maintain an action for damages for nuisance only when conduct of defendant interferes with the exercise of the particular rights and privileges which the plaintiff owns.

Nuisance — Casting of light

12. The casting of light of about intensity of moonlight 832 feet onto screen of drive-in open air moving picture theater outside limits of city by corporation operating a night horse race track where there were numerous floodlights, so as to interfere with proper showing of moving pictures, did not constitute actionable "nuisance", where both theater and track were constructed about same time.

Evidence — Judicial knowledge

13. The Supreme Court took judicial knowledge that many lighted parks and fields are located adjacent to residential property and must to some extent interfere with the full enjoyment of the darkness by residents.

                  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...