Jacobson v. Crown Zellerbach Corp.

• Decision Date: 05 September 1975
• Citation: 273 Or. 15,539 P.2d 641
• Parties: Buddy L. JACOBSON and Betty Jacobson, husband and wife, Appellants, v. CROWN ZELLERBACH CORPORATION, a Nevada Corporation, Respondent.
• Court: Oregon Supreme Court

Page 641

539 P.2d 641

273 Or. 15

Buddy L. JACOBSON and Betty Jacobson, husband and wife, Appellants, v. CROWN ZELLERBACH CORPORATION, a Nevada Corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 8, 1975.

Decided Sept. 5, 1975.

Nicholas D. Zafiratos, Astoria, argued the cause for appellants. With him on the briefs was Stephen L. Roman, Astoria.

Paul R. Duden, Portland, argued the cause for respondent. With him on the brief was Tooze, Kerr, Peterson, Marshall & Shenker, Portland.

HOLMAN, Justice.

Plaintiffs have a house by the side of the road. Defendant operates logging trucks on that road. Plaintiffs contend the vibrations from defendant's trucks are damaging their house and seek recovery. They secured a jury verdict, but defendant was granted a judgment notwithstanding the verdict and a new trial. Plaintiffs appeal.

After a verdict for plaintiffs, we state the facts in accordance with the evidence most favorable to them. A county road runs very close to plaintiffs' house. The evidence does not indicate the exact distance between the two points, but defendant, in its brief, states it to be approximately 15 feet to 20 feet, and plaintiffs do not take issue with this estimate. Defendant owns timberland located in the mountains behind plaintiffs' property, and, desiring to gain access to it from the county road, it entered into an agreement with plaintiffs for an easement across plaintiffs' land. The easement is only 70 feet in length and joins the county road 200 feet above plaintiffs' house. Defendant's trucks travel over the easement to the county road and then pass plaintiffs' house. Other logging trucks than defendant's also pass plaintiffs' house on the county road, but they are a small minority of the truck traffic. Plaintiffs' house, which sits on top of a bank above the county road, has become damaged by the subsidence of the land upon which it is built. The subsidence is caused by vibrations from the operation of loaded logging trucks during wet weather. Vibrations from the use of both the easement and the county road reach plaintiffs' house.

Plaintiffs pleaded two counts, one seeking to recover on a so-called 'nuisance' cause of action, and the other predicated on a provision of the easement agreement with defendant. The trial court sustained a demurrer to the nuisance count and the case was tried on the easement count with the results set forth above.

Plaintiffs contend the trial court erred in sustaining the demurrer to the nuisance count. They do not, however, object on the ground that a demurrer will not lie to an alternative theory of recovery. Rich v. Tite-Knot Pine Mill, 245 Or. 185, 189, 421 P.2d 370 (1966). We will treat the demurrer as testing the count even though the proper way to test it is by a motion to strike. Raymond v. Southern Pacific Co., 259 Or. 629, 632--33, 488 P.2d 460 (1971).

There is no magic in the use of the word 'nuisance.' It refers to the interest invaded, I.e., one's interest in the use and enjoyment of one's land, but before recovery is allowed, such invasion must be the result of action to which the law attaches responsibility. We so recognized in Raymond v. Southern Pacific Co., supra at 634--35, 488 P.2d at 463:

'Plaintiff is confused by his failure to recognize that 'nuisance' refers to the interest invaded and not to the type of conduct which subjects the actor to liability. Liability for the infliction of a nuisance may arise from an intentional, negligent, or reckless act, or from the operation of an abnormally dangerous activity. An invasion of a right of the kind classed as a nuisance may occur, but, unless the invasion resulted from action to which the law attaches responsibility, there is no liability.' (Footnote omitted.)

Having recognized the true source of nuisance liability, it is necessary to decide whether plaintiffs have alleged any conduct on the part of defendant to which the law attaches responsibility. Plaintiffs have alleged as follows:

'That the Defendant has operated said heavily loaded log trucks upon said easement and upon said County road and has caused vibrations of Plaintiffs' said premises, thereby substantially interfering with Plaintiffs' reasonable use and enjoyment of said premises * * *.'

'* * *.

'That after discovering said damage and ascertaining the cause, Plaintiffs notified Defendant, but that Defendant has continued to operate heavily loaded log trucks on said property and roadways during periods of heavy ground saturation, causing further damage to the improvements upon Plaintiffs' said property; that Defendant has failed and refused to cease and desist hauling heavy loads during said wet periods and has failed and refused to compensate Plaintiffs for the said damage caused to date.'

Plaintiffs have alleged that defendant hauled logs knowing that such action was damaging plaintiffs' property. Although plaintiffs have not alleged that defendant's conduct was negligent, reckless, or the subject of any form of strict liability, they have stated facts effectively alleging that it was intentional. 'Intentional,' as used in this context, means that the act was done with the knowledge that it would result in damage to another, not that it was done for the purpose of perpetrating injury. Furrer v. Talent Irrigation District, 258 Or. 494, 513, 466 P.2d 605 (1971); Restatement of Torts § 825, comment A. Therefore, there is a sufficient allegation of intentional injury.

The mere fact that the invasion is intentional, however, does not subject defendant to liability. Plaintiffs must, in addition, allege facts which show that the invasion was unreasonable in the sense that the harm to plaintiffs is greater than they should be required to bear in the circumstances. Normally, this is a question of fact that calls for the weighing of the gravity of the harm against the utility of the defendant's conduct. See Restatement (Second) of Torts §§ 822, 826--828 (Tent. Draft No. 17, 1971). However, we hold that, as a matter of law, plaintiffs have failed to allege conduct on the part of defendant to which the law attaches responsibility.

Plaintiffs have not alleged that defendant was using the public road other than in conformance with the county's regulations. They concede in their brief that defendant's use of the road did not violate any recognized laws or regulations. The question is whether a proper use of the public road that causes harm to an abutting landowner can subject the user to liability for a private nuisance.

A county road is dedicated to public use for travel. Defen...