Bourne v. Wilson-Case Lumber Co.
| Citation | 58 Or. 48,113 P. 52 |
| Parties | BOURNE v. WILSON-CASE LUMBER CO. |
| Decision Date | 07 February 1911 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Columbia County; Thomas A. McBride Judge.
Action by J.B.E. Bourne against the Wilson-Case Lumber Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Plaintiff here, alleging himself to be the owner of certain improved real property in the city of Rainier whereon are situated two dwelling houses with sundry fruit trees, shade trees, and fencing, complains, in substance, that, while he was absent from home about two years prior to the commencement of the suit, the defendant built a sawmill in a gulch adjoining his property and about 200 feet from it, and in the operation of said mill conveyed the sawdust, slabs, and like waste products of the mill to a spot about 50 feet from the plaintiff's premises, and has since then, except when the mill was shut down for repairs, kept a continual fire at that point burning up such waste; that by reason thereof the ashes, burning cinders, shavings, sawdust, and smoke are constantly carried by the wind and deposited on plaintiff's property and his houses, fruit trees, shade trees, and fencing; that the fire has escaped at different times and burned some of his fencing and fruit trees, and is a continual menace to the enjoyment of his property. He further claims that he has been damaged in the sum of $500 and, if the acts of the defendant are allowed to continue, he will suffer gross and irreparable damage. His prayer is "that defendant be enjoined from burning the waste products of its said sawmill, such as sawdust, slabs edgings, shavings, etc., on any portion of that certain piece of land in defendant's possession situate above defendant's sawmill and lumber yard, and plaintiff's said property or within five hundred feet of plaintiff's said property," and further asks for judgment against the defendant of $500. The answer admitted the corporate character of the defendant, and otherwise denied "each and every material allegation in all other paragraphs in said complaint." The circuit court heard the cause on the 15th of October, 1908, and on the 27th of April, 1909 entered its decree, finding that the "burning of the waste products of the defendant's mill in the manner and place in which and where it is now done constitutes a nuisance, and that the plaintiff has suffered damages in the sum of $100 from the said nuisance." The court further decreed "that the said nuisance be removed by the defendant within three months from the date hereof, and that, after the period of three months from this date, the defendant be perpetually enjoined and restrained from burning the waste products of its said sawmill, such as sawdust, slabs, edgings, shavings, etc., on any portion of that certain piece of land in defendant's possession situate between defendant's sawmill and lumber yard and plaintiff's said property, or within 500 feet of plaintiff's said property in the city of Rainier, Columbia county, Or., and that plaintiff have and recover from defendant the sum of $100 and his costs and disbursements in this suit, taxed at $52." From this decree the defendant has appealed.
Thos. G. Greene, for appellant.
A.B. Taylor, for respondent.
BURNETT J. (after stating the facts as above).
From the testimony reported here it appears that the sawmill in question is located in a gulch running from south to north into the Columbia river in the town of Rainier. Plaintiff's property is situated on a bluff about 40 or 50 feet above the level where the mill and slab fire are situated. The fire, as managed by the defendant, escaped and, spreading through the brush adjoining plaintiff's premises, burned his fences twice, totally destroying one apple tree and injuring other shrubbery and trees. The draft from the fire continually carries up into the air sawdust and cinders, and deposits them promiscuously over the...
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York v. Stallings
...Injunctions § 24 and 43 C.J.S. Injunctions § 192, p. 889. It is well settled that a sawmill is not a nuisance per se. Bourne v. Wilson-Case Lumber Co., 58 Or. 48, 113 P. 52 and Lindley v. Hyland, 173 Or. 93, 144 P.2d 295. It is clear, however, that a sawmill may become a nuisance by reason ......
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Fraser v. City of Portland
... ... Willamette [81 Or. 99] ... Box & Lbr. Co., 64 Or. 223, 233, 129 P. 1039; ... Bourne v. Wilson-Case Lbr. Co., 58 Or. 48, 52, 113 ... P. 52, Ann. Cas. 1913A, 245; Moore v ... ...
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Martin v. Reynolds Metals Co.
...same set of facts. York v. Stallings, Or.1959, 341 P.2d 529; Lindley v. Hyland, 1943, 173 Or. 93, 144 P.2d 295; Bourne v. Wilson-Case Lumber Co., 1911, 58 Or. 48, 113 P. 52; Columbian Carbon Co. v. Tholen, Tex.Civ.App.1947, 199 S.W.2d 825; Weller v. Snoqualmie Falls Lumber Co., 1930, 155 Wa......
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Nevada Cement Co. v. Lemler, 6897
...Realty Corporation, 141 W.Va. 627, 92 S.E.2d 891 (1956); Wright v. Best, 19 Cal.2d 368, 121 P.2d 702 (1942); Bourne v. Wilson-Case Lumber Co., 58 Or. 48, 113 P.52 (1911). The converse of that proposition must be that if a court does apply that doctrine and declines to abate the nuisance for......