Bedell v. Goulter

CourtSupreme Court of Oregon
Writing for the CourtBefore LATOURETTE; LUSK; Baldwin
Citation261 P.2d 842,199 Or. 344
Decision Date07 October 1953
PartiesBEDELL et ux. v. GUOULTER et al.

Page 842

261 P.2d 842
199 Or. 344
BEDELL et ux.
v.
GUOULTER et al.
Supreme Court of Oregon.
Argued and Submitted March 31, 1953.
Decided Oct. 7, 1953.

[199 Or. 345] H. V. Johnson, of Eugene, Harold V. Johnson, Jr., and James P. Harrang, of Eugene, on the brief, for appellants.

Windsor Calkins, Eugene, Calkins & Calkins, of Eugene, on the brief, for respondents.

Before LATOURETTE, C. J., and ROSSMAN, LUSK and PERRY, JJ.

LUSK, Justice.

This is a case of first impression in this court. It presents the question whether damages may be recovered for injury to

Page 843

real property caused by concussion or vibration from blasting operations where it is [199 Or. 346] neither pleaded nor proven that the defendant was negligent in the conduct of such operations. In a jury trial at the conclusion of the testimony the court, being of the opinion that the amended complaint on which the case was tried did not state facts sufficient to constitute a cause of action because no negligence was alleged, sustained a motion for judgment of involuntary nonsuit interposed after plaintiffs had put in their case in chief. From that judgment plaintiffs have appealed.

The amended complaint (omitting the allegations as to damages) reads as follows:

'I.

'1. That during all the times herein mentioned Plaintiffs were and now are husband and wife. That they were and now are the owners and in possession of a lot of land with a house thereon, described as follows:

'(Whereupon, there followed a legal description of 20.94 acres which is omitted.)

'2. That on the 29th day of September, 1949, and for approximately 15 months prior thereto, Defendants, while engaged in excavating on land adjoining and in close proximity to Plaintiffs' land and house, exploded large quantities of explosives; that Defendants were engaged in the construction of a railroad grade and that their explosions, which were set off at intervals during the 15 month period, produced great and violent concussions and vibrations of the earth and air which shook the Plaintiffs' land and house and the air above and around them, and caused great injury to the foundation of the house and the entire superstructure, including its walls which were cracked, its windows one being cracked and the putty knocked from others, its pipes which were caused to leak in the bathroom and kitchen, its bathtub which was caused to settle, its fireplace which was cracked. The Defendants blasting[199 Or. 347] produced recurrent vibrations which caused the cumulative injury to Plaintiffs' house and an unreasonable interference with the use and enjoyment of the premises in the nature of a nuisance. The injuries to Plaintiffs' house did not appear to an extent that could be measured exactly following each blast, but were the cumulation from the Defendants' entire line of conduct in the construction job close to Plaintiffs' premises.

'3. At all times the Defendants worked in disregard to Plaintiffs' right and in disregard to Plaintiffs' protests concerning the injury to Plaintiffs' premises, notwithstanding the fact that the Defendants knew that their blasting operations were progressively damaging Plaintiffs' property.

'II.

'That Defendants, by their blasting operation in close proximity to Plaintiffs' premises, on September 29, 1949, and for approximately 15 months prior thereto, caused vibrations and heavy concussion to travel and trespass upon Plaintiffs' premises causing direct injury to the foundation and superstructure in the particulars set out above.

'III.

'That Defendants, while constructing the railroad grade in close proximity to Plaintiffs' premises, and using large quantities of high explosives, were engaged in an ultrahazardous activity which produced concussions and vibrations which caused injury to the foundation and superstructure of Plaintiffs' house in the particulars set out above.'

The courts hold quite uniformly that irrespective of negligence one lawfully engaged in blasting operations is liable for property damage sustained as a result of casting rocks or other debris on adjoining or neighboring premises. 35 C.J.S., Explosives, § 8, page 238; Exner v. Sherman Power Const. Co., 2 Cir., 1931 54 F.2d 510, 513, 80 A.L.R. 686, and cases from numerous jurisdictions there [199 Or. 348] cited. A recent contrary holding is Reynolds v. W. H. Hinman Co., 1950, 145 Me. 343, 75 A.2d 802, 20

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A.L.R.2d 1360. Where, however, there is no actual invasion of land of the kind just stated, but damage results solely from vibration or concussion, as is the case here, some authorities have denied liability without proof of negligence. Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267, 35 N.E. 592, 24 L.R.A. 105, 37 Am.St.Rep. 552, is recognized as the leading exponent of this doctrine. For other cases see Annotation, 20 A.L.R.2d 1372, 1388 et seq. The courts so holding base the distinction on the historical difference between actions of trespass and case, a view which has been severely criticized by other courts which adhere to the rule of absolute liability in concussion cases. 20 A.L.R.2d 1375; 22 Am.Jur. 180, Explosions and Explosives, § 54; Prosser on Torts 80. This distinction, says Dean Prosser, 'has been denounced repeatedly as a marriage of legal technicality with scientific ignorance.' In Exner v. Sherman Power Const. Co., supra [54 F.2d 513], Judge Augustus N. Hand, writing the opinion for the court, said:

'It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care [citing cases]. Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between [199 Or. 349] the actions of trespass and case and, in our opinion, is without logical basis.'

See to the same effect, Colton v. Onderdonk, 69 Cal. 155, 10 P. 395, 58 Am.Rep. 556; City of Muskogee v. Hancock, 58 Okl. 1, 158 P. 622, L.R.A.1916F, 897; Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 79 A.2d 591; Antinozzi v. D. V. Frione & Co., 137 Conn. 577, 79 A.2d 598; Johnson v. Kansas City Terminal Ry. Co., 182 Mo.App. 349, 170 S.W. 456; McGrath v. Basich Brothers Const. Co., 7 Cal.App.2d 573, 46 P.2d 981; Bluhm v. Blanck & Gargaro, 62 Ohio App. 451, 24 N.E.2d 615; Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N.E. 970, L.R.A.1915E, 356, Ann.Cas.1916C, 1171; Longtin v. Persell, 30 Mont. 306, 76 P. 699, 65 L.R.A. 655, 104 Am.St.Rep. 723; Federoff v. Harrison Const. Co., 362 Pa. 181, 66 A.2d 817; Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188, L.R.A.1916D, 101; Hickey v. McCabe & Bihler, 30 R.I. 346, 75 A. 404, 27 L.R.A.,N.S., 425; Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L.R.A., N.S., 740; Brown v. L. S. Lunder Const. Co., 240 Wis. 122, 2 N.W.2d 859; Smith, Liability for Substantial Physical Damage to Land by Blasting, 33 Harv.L.Rev. 542, 544-549; Harper, The Law of Torts, § 204.

We are satisfied that, for the reasons so convincingly stated in the Exner case, as well as in many of the other cases cited, the rule of liability should be the same whether the blaster injures his neighbor's land by casting rocks, debris or other material on it or by setting in motion concussions or vibrations of the earth or air. In neither case is it necessary for a plaintiff to allege and prove negligence. This conclusion, however, while it may warrant a holding that the amended complaint is good, is not necessarily dispositive of the case. One ground of the motion for [199 Or. 350] nonsuit was that the evidence was insufficient. If this is a tenable ground it makes no difference whether the pleading is sufficient. Although there was substantial evidence to support the allegations of the amended complaint, the evidence respecting the character of the locality in which defendants' blasting operations were carried on and its distance from the plaintiffs' house requires us to examine the question of the exact nature and extent of the rule of so-called absolute liability in a case of this kind. In the language of the lawyer which evoked the parable of the Good Samaritan,

Page 845

'Who is my neighbor?' within the meaning of the rule.

The testimony discloses that the defendants, father and son, were engaged in a grading job in connection with the relocation of the tracks of the Southern Pacific Railway Company under a contract with the United States Army Engineers near Lost Creek, Oregon. The location of Lost Creek is not shown other than that it is in Lane County. The defendants' work, which necessitated blasting, commenced in the spring or summer of 1948 and was completed in September, 1949. Plaintiffs' dwelling house, according to the testimony of the plaintiff Charles J. Bedell, was 1200 feet or 1500 feet distant from the blasting at its nearest point and 2000 feet at its farthest. There is testimony concerning a few other houses in the vicinity, but the record leaves the clear inference that it was not a thickly populated district but rather open country. Charles J. Bedell testified that the 'hard blasting' did not commence until the spring or summer of 1949, and that a few days thereafter cracks opened up in the plaster of his house. Two or three weeks later he noticed breaks in the fireplace. He complained to the defendants about the damage, and their foreman and [199 Or. 351] the defendant K. S. Goulter went to plaintiffs' house to...

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32 practice notes
  • Johnson v. Star Machinery Co.
    • United States
    • Supreme Court of Oregon
    • December 19, 1974
    ...or property resulting, for example, from: (1) Ultrahazardous activities, such as blasting with dynamite. Bedell et ux. v. Goulter et al., 199 Or. 344, 349, 261 P.2d 842 (1953). See also Gronn et ux. v. [270 Or. 715] Rogers Construction, Inc., 221 Or. 226, 231, 350 P.2d 1086 (1960); (2) Cond......
  • Dyer v. Maine Drilling & Blasting, Inc., Docket: Wal-09-116.
    • United States
    • Supreme Judicial Court of Maine (US)
    • December 17, 2009
    ...Co., 26 Ohio St.2d 146, 269 N.E.2d 844, 846 (1971); Seismograph Serv. Corp. v. Buchanan, 316 P.2d 185, 187 (Okla.1957); Bedell v. Goulter, 199 Or. 344, 261 P.2d 842, 844 (1953); Federoff v. Harrison Constr. Co., 362 Pa. 181, 66 A.2d 817, 817-18 (1949); Wells v. Knight, 32 R.I. 432, 80 A. 16......
  • Koos v. Roth
    • United States
    • Supreme Court of Oregon
    • November 30, 1982
    ...I. Abnormally dangerous activities. The modern evolution of this form of strict liability in Oregon can be traced from Bedell v. Goulter, 199 Or. 344, [293 Or. 674] 361, 261 P.2d 842 (1953), which took as its starting point that this state followed the rule of Rylands v. Fletcher, (1868) L.......
  • Davis v. L & W Const. Co., No. 53898
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 1970
    ...Motors Div., 37 N.J. 396, 181 A.2d 487, 492--494; Davis v. Georgia-Pacific Corporation, supra, loc. cit., 445 P.2d 483; Bedell v. Goulter, 199 Or. 344, 261 P.2d 842, 845--846; and Annos. 20 A.L.R.2d 1372, We now hold, it was not incumbent upon plaintiffs to show injury to their property was......
  • Request a trial to view additional results
32 cases
  • Johnson v. Star Machinery Co.
    • United States
    • Supreme Court of Oregon
    • December 19, 1974
    ...or property resulting, for example, from: (1) Ultrahazardous activities, such as blasting with dynamite. Bedell et ux. v. Goulter et al., 199 Or. 344, 349, 261 P.2d 842 (1953). See also Gronn et ux. v. [270 Or. 715] Rogers Construction, Inc., 221 Or. 226, 231, 350 P.2d 1086 (1960); (2) Cond......
  • Dyer v. Maine Drilling & Blasting, Inc., Docket: Wal-09-116.
    • United States
    • Supreme Judicial Court of Maine (US)
    • December 17, 2009
    ...Co., 26 Ohio St.2d 146, 269 N.E.2d 844, 846 (1971); Seismograph Serv. Corp. v. Buchanan, 316 P.2d 185, 187 (Okla.1957); Bedell v. Goulter, 199 Or. 344, 261 P.2d 842, 844 (1953); Federoff v. Harrison Constr. Co., 362 Pa. 181, 66 A.2d 817, 817-18 (1949); Wells v. Knight, 32 R.I. 432, 80 A. 16......
  • Koos v. Roth
    • United States
    • Supreme Court of Oregon
    • November 30, 1982
    ...I. Abnormally dangerous activities. The modern evolution of this form of strict liability in Oregon can be traced from Bedell v. Goulter, 199 Or. 344, [293 Or. 674] 361, 261 P.2d 842 (1953), which took as its starting point that this state followed the rule of Rylands v. Fletcher, (1868) L.......
  • Davis v. L & W Const. Co., No. 53898
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 1970
    ...Motors Div., 37 N.J. 396, 181 A.2d 487, 492--494; Davis v. Georgia-Pacific Corporation, supra, loc. cit., 445 P.2d 483; Bedell v. Goulter, 199 Or. 344, 261 P.2d 842, 845--846; and Annos. 20 A.L.R.2d 1372, We now hold, it was not incumbent upon plaintiffs to show injury to their property was......
  • Request a trial to view additional results

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