Bither v. Baker Rock Crushing Co.

• Decision Date: 27 March 1968
• Citation: 438 P.2d 988,249 Or. 640
• Parties: F. O. BITHER and Gertrude Bither, husband and wife, Respondents, v. BAKER ROCK CRUSHING CO., an Oregon corporation, Appellant.
• Court: Oregon Supreme Court

Page 988

438 P.2d 988

249 Or. 640

F. O. BITHER and Gertrude Bither, husband and wife, Respondents, v. BAKER ROCK CRUSHING CO., an Oregon corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 6, 1968.

Decided March 27, 1968.

Thomas J. Moore and Mervin W. Brink, Hillsboro, argued the cause for appellant. With them on the briefs were Brink & Moore, and Allen L. Fallgren, Hillsboro.

Lamar Tooze, Jr., Portland, argued the cause for respondents. With him on the brief were Tooze, Powers, Kerr, Tooze & Peterson, Portland.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE, and LANGTRY, JJ.

LANGTRY, Justice pro tem.

This equity case was tried before circuit judge Avery Combs of the Nineteenth Judicial District shortly before his death on October 12, 1966. He had prepared an 'opinion' in the case which was filed on September 27, 1966. After Judge Combs's death, Judge Hammond succeeded to his duties in this case. Judge Hammond, in a memorandum, concluded that the opinion of Judge Combs was definite and constituted a satisfactory basis, as findings and conclusions, for a decree consistent therewith, and he signed and filed the same on March 13, 1967. Specifically, Judge Hammond found that the opinion:

'* * * was and is determinative of all the issues raised * * * in such clarity to permit a decree. * * * (S)ince this is a suit * * * and no request for findings of fact and conclusions of law were made within the time prescribed by statute, there is no valid reason for the entry of findings and conclusions in a form different from that already entered by the trial judge, or for consideration of any objections * * *.'

The complaint requested an injunction prohibiting the carrying on of a rock quarry and crushing operation. Judge Combs's opinion stated that the 'evidence clearly established a trespass by defendant * * * repeated and will be repeated * * * unless enjoined.' It also stated that the defendant's operations are a nonconforming use under a zoning ordinance applicable to the area; that the operation was interrupted, and, under the ordinance, the interruption would prevent a resumption of the nonconforming use. The opinion states the plaintiffs are entitled to an injunction and asks plaintiffs' attorney to prepare the decree and submit a copy to defendant's counsel 'for objections to form.' It states the decree should prevent only that which is unlawful under the zoning ordinance. 'It will therefore be the ruling of the Court that the plaintiffs are entitled to an injunction in conformity with the prayer of their complaint.' The prayer of the complaint is:

'WHEREFORE, the plaintiffs pray the court for a decree that the defendant, its officers, agents, and employees be permanently enjoined and restrained from the operation of a rock quarry, or any other use or activity in violation of said zoning ordinance, and from the explosion of explosives and the emission of fumes, dust, sounds, and vibrations greater than would occur in the normal and lawful occupation of said Tax Lot 901, and for their costs and disbursements herein incurred.'

Defendant has appealed, contending it became entitled to a new trial on Judge Combs's death and that Judge Hammond erred in entering the decree, citing Parker v. Parker, 241 Or. 623, 407 P.2d 855 (1965); Beardsley v. Hill, 219 Or. 440, 348 P.2d 58 (1959); Ernst v. Logan Oldsmobile Co., 208 Or. 449, 302 P.2d 220 (1956); Barone v. Barone, 207 Or. 26, 294 P.2d 609 (1956); and Thomsen v. Thomsen, 118 Or. 614, 228 P. 832, 245 P. 502, 247 P. 808 (1926). In Ernst, where the trial judge had filed an opinion from which the plaintiff sought to appeal, this court held that it was not a determination of the case from which an appeal could be taken. In Barone, we had said:

'* * * (U)ntil a formal judgment or decree is finally entered of record, the case remains in the bosom of the court * * *.' 207 Or. at 30, 294 P.2d at 612.

The decisions in the other cited cases generally are similar. None of them involves a situation where a judge has died or resigned after rendering a decision and before reducing it to formal judgment or decree.

Defendant contends these cases overrule Jordan Val. Irrig. Dist. v. Title & Trust, 154 Or. 76, 58 P.2d 606 (1936). They do not cite, let alone discuss it. In Jordan, a succeeding judge entered a decree based on a written opinion filed before his death by his predecessor. After examining the predecessor's opinion, this court said:

'* * * The opinion settled the issues and directed the kind of decree to be entered. * * * The opinion is a determination of the suit and it constitutes findings of fact * * *. While the opinion of Judge Wood was not entitled findings of fact and conclusions of law, the opinion very plainly states all the necessary facts and determines the case * * *.'

We do not agree that Jordan Valley has been overruled. It did not purport to decide whether an opinion of a judge who continues to be in office is or could be an order, a judgment, or a decree, as do the cases relied upon by defendant. Rather, it decided under what circumstances a successor may enter a decree based on the opinion, findings, or determinations left by his predecessor. The answer it gives is that he may, if the opinion or findings or determination--and we deem its name not important--in substance, 'plainly states all the necessary facts and determines the case.' The fact the predecessor judge, had he lived, may have changed his mind is unimportant. A judge who continues in office may, within a limited period of time, do that even after he has rendered what is termed a final decree and change the decree accordingly.

The defendant urges upon us the decisions in State ex rel. Wilson v. Kay, 164 Wash. 685, 4 P.2d 498 (1931), and Hawley v. Priest Rapids Ice & Cold Stor. Co., 172 Wash. 71, 19 P.2d 400 (1933), in each of which the trial judge died after announcing a decision and before entering a decree. In the first it was an oral opinion from the bench; in the second it was a written opinion. In each the Washington Supreme Court held the successor could not enter decree based thereon. The language defendant quotes from Hawley upholds defendant's position in this case:

'* * * Such a memorandum has no greater force than an oral opinion rendered from the bench. Of itself, it effects nothing * * *.' 172 Wash. at 73, 19 P.2d at 401.

But the opinion notes also that the trial judge's opinion could not be regarded as a finding of facts for it asked counsel to prepare and submit them. In the instant case Judge Combs directed plaintiffs' counsel to prepare and submit, not findings of fact and conclusions of law, but, a decree, and submit it to the opposing counsel 'for objections to form.'

Furthermore, in Hawley the Washington court pointed out that in State ex rel. Bloom v. Superior Court, 171 Wash. 536, 18 P.2d 510 (1933), decided only a few months previously, where a judge had formally adopted findings and conclusions prepared by a court-appointed auditor and later the same day resigned and ceased then to be a judge, the Washington Supreme Court had required by mandamus that a decree should be entered thereon by the successor. In that case it set up much the same test we did in Jordan Valley:

'* * * They (the findings and conclusions) set up as judicially established certain facts which theretofore were in dispute, and the conclusions drawn from the facts found call for a judgment against the defendant, the terms and nature of which are clearly and definitely indicated * * *.' 171 Wash. at 538--539, 18 P.2d at 511.

The opinion then continues with an extended discussion of the reasons why the successor should enter the decree. This decision was followed in State ex rel. Nelson v. Superior Court, 184 Wash. 97, 49 P.2d 903, 54 P.2d 1215 (1933).

As indicated in Judge Hammond's memo in the instant case, if defendant had before trial requested 'special findings of fact, and * * * separately * * * conclusions of law * * *,' in conformance with ORS 17.431(1), our decision necessarily would be different. His decision is consistent with ORS 17.431(2), which states:

'In the absence of such a demand for special findings, the court may make either general or special findings.'

We hold that Judge Hammond correctly determined that Judge Combs's opinion was definite and the decree based thereon is valid.

The defendant asserts one assignment of error to the decree itself: that the trial court erred in holding that there was a discontinuance of use by defendant under the zoning ordinance.

Judge Combs's opinion, and the decree based upon it, each state two bases for injunction: (1) against operation of a rock quarry, or other use or activity in violation of the zoning ordinance; (2) against explosives and emission of fumes, dust, sounds and vibrations greater than would occur in lawful occupation of the land in conformity with the zoning ordinance. The first is an injunction against a use that violates a zoning ordinance, and the second is an injunction against a trespass, and simply measures what may not be done under the injunction by the limits found in the zoning ordinance. Each is based upon a separate cause of action.

Judge Combs's opinion states:

'* * * (T)he evidence clearly established a trespass by defendant both by way of concussion and vibration and also by way of deposit of dust and debris upon plaintiffs' lands * * *.

'* * *

'* * * (T)he zoning ordinance provides no guide lines as to what constitutes an interruption (but) I feel that a discontinuance of use for over a year would have to be considered as an interruption under the ordinance which would prevent a resumption of the nonconforming use.'

It does not appear that defendant by its one assignment of error has challenged (2), that is, the finding of trespass. The tenor of defendant's reply brief makes it appear that the confusion has arisen by reason of defendant not...