Kesterson v. California-Oregon Power Co.
| Decision Date | 08 January 1924 |
| Citation | 221 P. 826 |
| Parties | KESTERSON ET AL. v. CALIFORNIA-OREGON POWER CO. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.
Action by I. E. Kesterson, doing business under the firm name and style of the I. E. Kesterson Lumber Company, and others against the California-Oregon Power Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded for further proceedings.
Wallace McCamant, of Portland (Miller, Thornton & Miller, of San Francisco, Cal., Renner, Manning & Ganong, of Klamath Falls and McCamant & Thompson, of Portland, on the brief), for appellants.
A. E Reames, of Medford, and Peter Dunne, of San Francisco, Cal. (Morrison, Dunne & Brobeck, of San Francisco, Cal., and R. C. Groesbeck and D. V. Kuykendall, both of Klamath Falls, on the brief), for respondent.
On the 17th day of September, 1920, plaintiff Kesterson was the owner of a sawmill plant and a large quantity of manufactured lumber, piled in his lumber yards adjacent to his sawmill. On the date mentioned the above-described property of Kesterson was destroyed by fire communicated thereto by the breaking of an electric power line belonging to the defendant, and maintained and controlled by it, the wires of which power line carried a high voltage of electricity.
Prior to the fire mentioned seven fire insurance companies had issued policies to Kesterson, insuring his sawmill plant and lumber against loss or damage by fire. Each insurance company paid the indemnity provided by its policy, and at the same time claimed that the fire was caused by the negligence of defendant, whereupon the insurance companies each became subrogated, to the extent of its payment, to the right of recovery, if any, by Kesterson for the loss resulting from the fire.
Kesterson and the insurance companies above referred to instituted this action against defendant to recover the damages sustained by Kesterson as a result of the fire above mentioned. Plaintiffs, in their amended complaint, alleged that defendant carelessly and negligently constructed and maintained its power line, and the wires constituting the same, each of which carried 37,000 volts of electric current; and by reason of which carelessness and negligence said wires became so weak and defective that on or about the 17th day of September, 1920, one or more of them broke and fell upon one or more of the piles of lumber belonging to plaintiff Kesterson, and piled by him immediately under defendant's power line at the south end of his lumber yard, and set fire thereto, and to the lumber in the lumber yard, and to his sawmill and property used in connection therewith, and injured and destroyed the same.
It further appeared from the averments of the amended complaint that the power line of defendant was constructed by it prior to the 5th day of March, 1917, and thereafter maintained by it up to the time of the fire, over a right of way 50 feet in width, which defendant acquired for that purpose by deed dated May 2, 1912; that the grantors from whom defendant acquired its said right of way, on the 5th day of March, 1917, leased to Kesterson a part of the premises over which defendant's right of way extended for a period of from one to ten years, to be used by Kesterson for the purpose of erecting and conducting thereon a complete sawmill camp and yards; that the wires of the defendant's said power line, at the times mentioned in the amended complaint, were strung upon and fastened to the top of two pole towers about 530 feet apart and each 40 feet in height, located at the center line of its right of way, where the same extended over the premises leased by Kesterson, as above stated; that the wires of defendant's power line were highly dangerous to anything with which they might come in contact, other than the attachments with which they were fastened to the pole towers, and to guard against danger and injury from them the wires were strung and designed to remain so that none of them would come nearer the ground than 35 feet at any place between the pole towers mentioned; that at the time of the fire and prior thereto the lumber in the lumber yard of plaintiff Kesterson was stacked in piles which extended across defendant's right of way and beyond the outside lines of said right of way a distance of several hundred feet; that the piles of lumber that were ignited by the falling wire or wires were piled by plaintiff Kesterson across defendant's right of way, as aforesaid, at a distance of about 150 feet from defendant's pole tower, which was near the south end of the lumber yard, and to a height that brought none of the aforesaid piles of lumber nearer than 20 feet to any of the wires of defendant's power line, strung upon and supported by the pole towers as above described.
Defendant interposed a demurrer to the amended complaint one of the grounds of which was that it did not state facts sufficient to constitute a cause of action. In support of its demurrer defendant contended in the circuit court that it appeared from the amended complaint that, by placing his lumber upon and entirely across defendant's right of way, and piling the same to a great height thereon, as shown by the allegations of the amended complaint, Kesterson unlawfully encroached upon and obstructed defendant's right of way and thus became a trespasser thereon, and for that reason he was not entitled to recover. The circuit court adopted the contention of defendant, and sustained the demurrer, and, upon plaintiffs' refusal to plead further, entered judgment for defendant. Plaintiffs appeal, and assign as error the action of the lower court in sustaining defendant's demurrer.
The circuit court construed the right of way deed to defendant as a grant of the fee, with a reservation by the grantors of the right to use the surface of the soil embraced in the right of way for agricultural purposes only, as distinguished from manufacturing purposes, and held that plaintiff Kesterson, the lessee of defendant's grantors, by placing his lumber upon the right of way without permission occupied as to the defendant the position of a trespasser, towards whom defendant owed no active duty of care, to avoid injuring the offending lumber.
The rule is firmly established that the owner of real property owes no legal duty to a trespasser thereon, except not to wantonly or intentionally injure him or his property. Rathbone v. Or. R. Co., 40 Or. 225, 66 P. 909, 910; Long v. P. Ry. & Nav. Co., 74 Or. 502, 144 P. 462, 145 P. 1068, L. R. A. 1915F, 1151; Haynes v. Or. & Wash. R. & Nav. Co., 77 Or. 236, 150 P. 286, 288; Railroad Co. v. Yeiser, 8 Pa. 366, 377; Cincinnati, N. O. & T. R. Co. v. South Fork Coal Co., 139 F. 528, 71 C. C. A. 316, 1 L. R. A. (N. S.) 533. If the use of defendant's right of way by plaintiff Kesterson as a lumber yard constituted him a trespasser upon the property rights of defendant, within the rule recognized in the decisions last cited, plaintiffs' amended complaint is insufficient as against defendant's demurrer thereto, and the judgment of the circuit court should be affirmed.
Whether Kesterson was such a trespasser depends upon the proper construction of the deed granting to defendant the right of way occupied in part by the lumber, recovery for the destruction of which this action was instituted. As the lessee from defendant's grantors of the land crossed by the right of way, the rights of Kesterson to use the right of way are equal, but not greater than, that of his lessors. The rights, if any, of the plaintiffs insurance companies against defendant are derived from Kesterson. If the latter has no right of action against defendant, then the insurance companies have none.
The deed conveying to defendant the right of way in question is set out at length in plaintiff's amended complaint. The granting clause of that deed and matter limiting and defining the rights granted to defendant thereby are as follows:
The above-quoted provisions of the deed amount to the grant of an easement, consisting of a right of way, and, unless subsequent clauses in the deed operate to restrict that right, the grantors therein or those holding under them, have and had a right to use the land included in the easement in any way which is not inconsistent with the easement. Hotchkiss v. Young, 42 Or. 446, 71 P. 324, 326; Patterson v. Chambers, 81 Or. 328, 344, 159 P. 568; Gamma Alpha Ass'n v. Eugene, 94 Or. 80, 89, 184 P. 973; Fendall v. Miller, 99 Or. 610, 196 P. 381; Parks v. Gates, 186 Cal. 151, 199 P. 40; 19 C.J. 909; Curtis on The Law of Electricity, § 316; Jones on Telegraph and Telephone Companies (2d Ed.) §§ 141, 143.
The relative rights and obligations of the owner of such an easement and the owner of the estate upon which the easement is a burden...
To continue reading
Request your trial