Davis v. Georgia-Pacific Corp.

• Decision Date: 25 September 1968
• Docket Number: GEORGIA-PACIFIC
• Parties: Lawrence E. DAVIS and Veva A. Davis, husband and wife, Respondents, v.CORPORATION, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 481

445 P.2d 481

251 Or. 239

Lawrence E. DAVIS and Veva A. Davis, husband and wife, Respondents, v. GEORGIA-PACIFIC CORPORATION, a corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 3, 1968.

Decided Sept. 25, 1968.

Clifford N. Carlsen, Jr., Portland, argued the cause for appellant. With him on the briefs were Fredric A. Yerke, Jr., and Jean P. Lowman, Portland, William T. Hollen, Newport, and King, Miller, Anderson, Nash & Yerke, Portland.

Nels Peterson, Portland, argued the cause for respondents. With him on the brief were Donald H. Londer and Peterson, Chaivoe & Londer, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Plaintiff Veva Davis owns a residence in the city of Toledo. Subsequent to her occupation of the premises defendant commenced the operation of a pulp and paper plant in close proximity thereto. The plaintiffs, Mrs. Davis and her husband, testified the premises was rendered uninhabitable by the operation of defendant's plant because of the emanation therefrom of vibrations, offensive odors, fumes, gases, smoke and particulates which damage the residence and plant life. Plaintiffs secured a judgment against defendant for both compensatory and punitive damages for trespass. Defendant appealed.

Defendant's first four assignments of error relate to the admission of evidence and an instruction to the jury which allowed the jury to consider whether the intrusion of fumes, gases, and odors upon the property in question constituted a trespass. Defendant contends such intrusions constitute a nuisance rather than a trespass because there was no direct physical invasion of the property. The traditional concept that a trespass must be a direct intrusion by a tangible and visible object as set forth in Norwood v. Eastern Oregon Land Co., 139 Or. 25, 37, 5 P.2d 1057, 7 P.2d 996 (1932), has been abandoned in this state. In Bedell et ux. v. Goulter et al., 199 Or. 344, 361, 261 P.2d 842 (1953), this court held there was a trespass where harm occurred because of vibrations of the soil and concussions of the air caused by blasting. In Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1960), we decided that the deposit of airborne particulates upon another's land constituted a trespass even though the particulates were so small as to be invisible in the atmosphere. In so holding the following language was used at page 94, 342 P.2d at page 794:

'If, then, we must look to the character of the instrumentality which is used in making an intrusion upon another's land we prefer to emphasize the object's energy or force rather than its size. Viewed in this way we may define trespass as any intrusion which invades the possessor's protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist.'

Error was not committed by allowing the jury to consider an intrusion of fumes, gases, smoke and odors as a trespass.

The next five assignments of error relate to the refusal of the trial court to admit evidence and give instructions relevant weighing the utility of defendant's conduct of its business and its efforts to prevent harm, against the seriousness of the harm, if any, suffered by plaintiffs. Traditionally, such a weighing process by the jury is one which is permitted in nuisance cases but not in those of trespass. In a trespass case the social value of defendant's conduct, its efforts to prevent the harm and other circumstances that tend to justify an intrusion cannot be considered by the trier of the facts. See Faust, Strict Liability in Landowner Cases, 42 Or.L.Rev. 273, 276 (1963).

This does not mean, however, that a weighing process does not take place when a court decides whether a particular kind of an intrusion, if found by the jury to exist, is of such a nature that it should be classified as a trespass. The illustration used by Faust, supra, is the decision of courts that the normal operation of airplanes high in a property's airspace does not constitute a trespass. A similar kind of weighing process takes place when a court decides whether a trespass is privileged. Such classifications, however, are ones that are made by courts and not by juries. If the jury finds that intrusion occurred which is of a kind that courts hold to be an unprivileged trespass, strict liability results. The jury is not allowed to consider the utility of the use to which defendant is putting his land or his efforts to prevent harm to plaintiff in deciding plaintiff's recovery. Therefore, it was proper in this case for the trial court not to allow the jury to consider the evidence and instructions in question in deciding whether defendant should be responsible for Compensatory damages.

We wish to make clear that no conclusion should be drawn from the above language that such a weighing process is inappropriate in a court's consideration whether an injunction should issue to restrain a continuing unprivileged trespass or whether a plaintiff should be left to his remedy at law for damages.

However, the jury's consideration was not limited to compensatory damages under the present pleadings because they included a request for punitive damages as well. Thus, the question is raised whether the evidence offered, which was relevant to the weighing process, should have been admitted for the jury's consideration in deciding the issue of punitive damages. Punitive damages are used for the purpose of determent when there has been a particularly aggravated disregard of the rights of others. Noe v. Kaiser Foundation Hosp., 248 Or. 420, 435 P.2d 306 (1967). Certainly, in considering the degree of aggravation of defendant's actions, it was proper for the jury to be apprised of the utility of defendant's operations and its efforts, as compared with others similarly engaged, to prevent damage to surrounding properties. It was, therefore, error not to admit the evidence relating to the weighing process for the limited purpose of the jury's consideration of punitive damages and the verdict for punitive damages must be set aside.

Defendant assigns as error the court's refusal to direct a verdict in defendant's favor against the plaintiff, Mr. Davis. Defendant claims Mr. Davis has no protectible interest under the law of trespass because he is a stranger to the title which was in the name of his wife alone. Mr. Davis could have no interests which relate to the dignity and rights of ownership. His only rights are those of use and enjoyment of the property by the sufferance of his wife. In the present case plaintiffs seek damages for permanent injury to the property. Whether a claimant's interest is in the freehold or possessory only, determines his right to recover for permanent injury to the property or merely for an injury to use and enjoyment. 52 Am.Jur. 874, Trespass, § 49. Defendant stated in argument and plaintiffs did not deny that the parties agreed that the measure of damages was the diminution in the value of the property, if any, brought about by defendant's trespass. Having sought damages for permanent injury to the property, Mr. Davis was an improper party plaintiff because he had no interest in the freehold. However, the court's failure to remove Mr. Davis as a party plaintiff did not constitute reversible error because the defendant could not have been damaged by it.

Defendant also contends that the court erred in allowing Mr. Davis to testify as to his opinion of the...