Blagen v. Smith

• Decision Date: 13 March 1899
• Citation: 34 Or. 394,56 P. 292
• Parties: BLAGEN et al. v. SMITH. [1]
• Court: Oregon Supreme Court

56 P. 292

34 Or. 394

BLAGEN et al. v. SMITH. ^[1]

Supreme Court of Oregon

March 13, 1899

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by N.J. Blagen and others against Robert C. Smith. From a decree dismissing the suit, plaintiffs appeal. Reversed.

This is a suit by private parties to enjoin the continuance of a public nuisance. The transcript shows that the plaintiff N.J Blagen is the owner of two lots at the southeast corner of Couch and First streets, in the city of Portland, upon which he erected a large four-story brick building in 1890 expending in the purchase of the land and the improvement thereof about $80,000; that upon the completion of this building it was leased to the plaintiff the W.C. Noon Bag Company, a corporation, which is engaged in the manufacture of bags, tents, awnings, and sails, employing from 40 to 60 men and women; that the other plaintiffs own or are in possession of certain real property having stores warehouses, or factories erected thereon, and all situated in the immediate vicinity of Blagen's said building; that defendant R.C. Smith, having leased two lots diagonally across Couch street from Blagen's building, and two lots at the southwest and two at the southeast corners of the intersection of Davis and First streets, changed thereon various small wooden buildings into what are known as "cribs," for the purpose of renting them to dissolute women, to be used as bawdy houses. The plaintiffs substantially allege that if defendant leases these cribs, to be used for the purpose for which they were designed, it will depreciate the value of their property, render it less desirable for rent, and result in a private, special, and direct injury to them. The plaintiff the W.C. Noon Bag Company avers that from the windows in the Blagen building said cribs are in plain view; that its employés, in coming to and returning from their labor, must necessarily pass by or between these buildings, which, if they are permitted to be used for immoral purposes, will bring to the vicinity in which they are situated drunken, disorderly, and disreputable persons and criminals, the effect of which will be to endanger the lives and morals of its employés, and interfere with, disturb, and injure its business, resulting in a private, direct, and special damage to it. Whereupon plaintiffs prayed that a temporary injunction might be issued, restraining the defendant from proceeding further in the construction or repair of any building upon the said premises for the purposes of prostitution, from renting any of said cribs, or allowing any persons to occupy the same, for that purpose, and from transferring or selling said buildings to any person to be used for immoral purposes, and that upon the final hearing said injunction be made perpetual. The defendant, after denying the material averments of the complaint, alleges, in substance, that he had expended in repairing said buildings the sum of $5,000, and that the only manner in which he could be reimbursed for the outlay, and for the rent which he had agreed to pay for the use of the premises, was by subletting these houses, not for immoral purposes, but to any persons who might wish to rent them; that they are cheap, and desirable only to a class of people who would be liable to want to live in that part of the city, which, by reason of its contiguity to the wharves on the Willamette river, and the liability of that stream to overflow its banks, would never be occupied as residence property, except by the poorest class of people, who are compelled by necessity to seek cheap rents; that in June, 1894, the backwater from said river stood six feet deep over all said property, since which time none of it had been desirable for any purpose; that said section of the city is remote from public travel, without retail stores, and that ladies have no occasion to visit it, and never have gone into the neighborhood. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, and from the evidence taken thereat the court found the facts, in substance, as above given, and also that five or six Japanese prostitutes had moved into some of these buildings since this suit was commenced, notwithstanding a temporary injunction restraining defendant from leasing them to such persons had been issued and served, and that the proximity of these cribs to the property of said Blagen may somewhat depreciate its value; that the alterations made by defendant upon said buildings have not in any manner injured plaintiffs' property, or been any damage to their business; and that, if these houses be rented and used for immoral purposes, neither of the plaintiffs will suffer any special or peculiar injury therefrom, different from that sustained by the community at large. The court also made the following findings: "Tenth. That long prior to January 1, 1897, there was situated directly across the street from said property of N.J. Blagen a house of prostitution kept by one 'Liverpool Liz,' and on the corner of First and C streets, diagonally across the street, there was what was known as the 'Bella Union Theater,' a mixed saloon, where women resorted and sold liquors; that next to the building occupied by Liverpool Liz there stood a sailor boarding house, kept by Jim Turk; that this part of town is known as part of Whitechapel district. Eleventh. That at the time of bringing this suit there were, and still are, situated within two blocks of said property of N.J. Blagen fifteen saloons, and over twenty-eight houses of prostitution, called 'cribs,' and that said cribs or houses of prostitution and saloons have been standing on said property several years prior to January 1, 1897." The court thereupon dissolved the temporary injunction and dismissed the suit, from which plaintiffs appeal.

George H. Williams, for appellants.

John M. Gearin, for respondent.

MOORE, J. (after stating the facts).

It is contended by plaintiffs' counsel that the court erred in permitting defendant, over their objection, to introduce testimony outside the issues, and in making the findings thereon numbered, respectively, 10 and 11. Section 397 Hill's Ann.Laws Or., as amended by the act of the legislative assembly approved February 20, 1893 (Laws Or.1893, p. 26), in prescribing the manner in which findings shall be prepared in suits, reads as follows: "The court in rendering its decision shall set out in writing its findings of fact upon all the material issues of fact presented by the pleadings, together with its conclusions of law thereon, but such findings of fact and conclusions of law shall be separate from the decree, and shall be filed with the clerk and incorporated in and constitute a part of the judgment roll of said cause; and such findings of fact shall have the same force and effect and be equally conclusive as the verdict of a jury in an action at law, except on appeal to the supreme court the cause shall be tried anew without reference to such findings." The transcript shows that counsel for defendant, on his cross-examination of W.C. Noon, referring to a period of two or three years prior to the commencement of the suit, propounded to him the following question: "Do you know, during that time, of such a place as the Bella Union Theater?" Whereupon the court, upon objection being made, said: "As to the injury of the property there, I think perhaps that would be admissible." The witness answered: "I think I have seen that on the door; yes." No exception to the ruling of the court upon the admission of this testimony was saved, nor can we find, from an inspection of the transcript, that any other objection was made or exception saved to the introduction of any of the testimony tending to support the findings complained of. This being so, and the cause coming before us for trial de novo, the question is presented whether, in the absence of any exception to the action of the court admitting testimony tending to show that houses of ill repute and other disreputable places of resort existed in the immediate vicinity of plaintiffs' property long before defendant constructed the cribs mentioned in the complaint, such testimony shall be considered on appeal, in view of the issues of fact to be tried. In Newby v. Myers, 44 Kan. 477, 24 P. 971, it is held that the findings of fact of a trial court must be based upon the issues made by the pleadings, and any finding outside such issues is a nullity. In Marks v. Sayward, 50 Cal. 57, it is held that findings of fact must be within the issues; otherwise, they will not be regarded. In Reinhart v. Lugo, 75 Cal. 639, 18 P. 112, it is held that the finding in an action of partition contrary to an admission made by the pleadings as to the plaintiff's interest in the lands in question is outside the issue and erroneous, and a judgment based thereon should be reversed. In Hall v. Arnott, 80 Cal. 348, 22 P. 200, it is held that findings upon issues not properly presented by the pleadings must be disregarded. There is no issue in the pleadings upon which findings numbered 10 and 11 can be predicated, nor...