East St. Johns Shingle Co. v. City of Portland

• Decision Date: 03 July 1952
• Citation: 195 Or. 505,246 P.2d 554
• Parties: EAST ST. JOHNS SHINGLE CO., Inc., et al. v. CITY OF PORTLAND. SCHMIDT et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

Page 554

246 P.2d 554

195 Or. 505

EAST ST. JOHNS SHINGLE CO., Inc., et al. v. CITY OF PORTLAND.

SCHMIDT et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon.

Argued Jan. 24, 1952.

Decided July 3, 1952.

James Arthur Powers, of Portland, filed briefs, for appellants.

Marian C. Rushing, Chief Deputy City Atty. of Portland (Alexander G. Brown, City Atty., of Portland, on the brief), for respondent.

Before BRAND, C. J., and HAY, ROSSMAN, LUSK and WARNER, Justices.

WARNER, Justice.

This appeal is from a judgment in favor of the defendant city in two actions tried together before a jury. The complaints in both are identical in form. Each is an action for damages alleged to have been caused by the city of Portland in dumping raw sewage into the Columbia slough, a navigable body of fresh water situated in Multnomah county. It is about 18 miles in length, south of and adjacent to the Columbia river, and extends generally along the northerly boundary of the city outside the city limits. The flow from the city's sewers represents drainage from approximately 7,120 acres within its corporate limits situated on the northerly side of its peninsula district, with a natural slope toward the slough. During some seasons of high waters, the slough is augmented by a flow from the Columbia river at its east end. Except during such overflow periods, the slough contains stagnant water moved only by the ebb and flow of the tide in the Willamette river, into which it empties near its mouth.

Esat St. Johns Shingle Company, Inc., and Gertrude Gotcher are plaintiffs in one case. Mrs. Gotcher is the owner of a parcel of land bordering on Columbia slough, upon which is situated the East St. Johns shingle mill operated by her husband and in which she has an apparent interest. Alfred Schmidt, doing business as Portland Shingle Company, plaintiff in the other case, owns another parcel similarly situated, upon which premises he operates a like industry. Along the slough are also many dwellings, businesses and other industries, including slaughterhouses and livestock-feeding places, which contribute to its pollution by the discharge of private sewers and drains.

For the purpose of this opinion, we will hereinafter refer to the complaining parties in both cases as the 'plaintiffs'.

Rafting in the slough was the method employed by the plaintiffs to get logs to their respective mills. One of the mills was solely dependent upon this waterway in order to get its log supply. It is plaintiffs' contention that the rafted logs became coated with sewage from the city sewers. They claim that this discharge of the sewer contents into the slough constituted a public nuisance from which they were damaged in a way different from the general public. This special damage, they assert, is reflected by the increased costs of their operations resulting from the contamination of their logs by sewage matter and necessitating cutting off and losing the value of the thus damaged parts. Plaintiffs also urge that the values of their respective properties were depreciated by the polluted conditions which prevailed in the slough. In each case damages are claimed for a six-year period immediately preceding the filing of their respective complaints. In the East St. Johns Shingle Company case this period would be from December 1, 1938, to December 1, 1944. In the other case it would be from November 1, 1938, to November 1, 1944.

The city's defense rested upon allegations (1) that the city was not creating or maintaining a private nuisance in the Columbia slough nor causing damage to plaintiffs; (2) that plaintiffs' claim of permanent damage is barred by the statute of limitations; (3) that if any nuisance was created and damage done, it resulted not from action on the city's part but by activities of other persons and parties along the slough, primarily those of large packing plants which discharged the offal from their operations into its waters; (4) that the city had acquired a prescriptive right to use the slough as a place for emptying its sewage; and (5) that the plaintiffs are estopped from claiming damages, both by reason of their knowledge of conditions of which they complain and which the city says were existent when they acquired their respective properties and by further reason of their own acts contributing to the pollution of the slough waters.

Plaintiffs' first assignment of error has its genesis in the city's allegation of estoppel. It is predicated upon an instruction given and duly excepted to and also upon the court's refusal to give a requested instruction bearing on the same subject matter. The instruction to which objection was made reads:

'Now, this is on the question of estoppel,--when property owners are estopped from claiming any rights because they knew the conditions when they built their mills there, and so forth. The City further sets up claims in its answer that when plaintiffs bought their property and started their shingle mill that the City was already discharging sewage into the Columbia Slough, and that plaintiffs either knew or reasonably should have known of such discharge, and that therefore they have no right to come in now and claim damages as a result of the sewage discharge. It is up to you as the jury to decide whether or not these statements are true, and if you find them to be the facts, that the effect of the sewage should reasonably have been foreseen, then plaintiffs are not entitled to recover any damages therefor.'

The essence of plaintiffs' objection to this instruction was that even if plaintiffs had discovered an obnoxious situation at the slough for which the city was responsible and even though it was existing at the time they acquired their properties, they were nevertheless not bound to anticipate that the city would commit and continue its acts of nuisance in the future to plaintiffs' special injury. Their requested instruction was of like tenor.

The city's defense of estoppel is an invocation of the ancient mexim of volenti non fit injuria (no legal wrong is done to him who consents). When applied in suits to abate nuisances or in actions to recover damages arising from their maintenance, it is more commonly known as the doctrine of 'coming to the nuisance,' when relied upon by a defendant claiming priority of occupation and particularly when, during the period of such prior occupation, the nuisance complained of has been established. It savors of the rule of assumption of risk so well known in actions for negligence.

The early common law rule in regard to the location of a newly arrived inhabitant was that the latter must suffer the inconvenience to health and property from industries already located in the same vicinity. The reason for this law was that it was one's own fault to move into the proximity of the offending trade or industry. Rex v. Cross, 2 C. & P. 483, 172 Eng.Rep. 219 (Nisi Prius), is a very early English case, often cited by the authorities, where it was held:

'If a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of the noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party would be entitled to continue his trade, because his trade was legal before the erection of the houses in the one case, and the making of the road in the other.'

The doctrine of 'coming to the nuisance' is one of first impression in this jurisdiction. We have recognized its existence but have not applied it, nor have we indicated precisely what would be our reactions if invoked in a proper case. Kramer v. Sweet, 179 Or. 324, 169 P.2d 892, was a suit to enjoin, as a nuisance, the operation of a slaughterhouse in a residential district. At page 332 of 179 Or., at page 896 of 169 P.2d, we said:

'* * * The plaintiffs had established their residences in the locality for many years prior to the invasion thereof by defendant's slaughterhouse, and, under those circumstances, the court must take a less favorable view of defendant's case than it might have been disposed to take if his business had been maintained in the neighborhood for a long period of time. Conway v. Gampel, 235 Mich. 511, 209 N.W. 562.'

In Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 362, 198 P.2d 847, 858, 5 A.L.R.2d 690, we rested the matter with the observation: 'Neither party can claim any greater social utility than the other. Both were in process of construction at the same time, and the case should not be decided upon the basis of the priority of occupation. * * *'

The novelty of the doctrine to Oregon law is further emphasized by the fact that each of the parties cites only one Oregon decision in support of its respective contentions concerning the doctrine's applicability or nonapplicability here. The plaintiffs rely upon McGowan v. City of Burns, 172 Or. 63, 137 P.2d 994, 139 P.2d 785; and the city relies upon Miller v. City of Woodburn, 134 Or. 536, 294 P. 349. In our opinion, neither is in point.

The McGowan case was one wherein the city of Burns sought to abate a nuisance in the street under the authority of an ordinance relating to 'apron' approaches to filling stations. Such structures were held to constitute public nuisances and within the authority of the city to abate. The plaintiffs pleaded an estoppel on the ground that the city had previously approved and accepted the structure it was then seeking to destroy. This position was rejected by this court for the reasons stated at page 76 of 172 Or., at page 999 of 137 P.2d:

'The plaintiffs argue, however, that (a) since the defendant's officials did not prevent the plaintiffs from continuing the construction of the aprons after it had become evident that they intended to deviate from the building permit, and (b) since the aprons have...