Kotenberthal v. City of Salem

• Citation: 11 P. 287,13 Or. 604
• Parties: KOTENBERTHAL v. CITY OF SALEM.
• Decision Date: 24 June 1886
• Court: Oregon Supreme Court

11 P. 287

13 Or. 604

KOTENBERTHAL v. CITY OF SALEM.

Supreme Court of Oregon

June 24, 1886

W.H Holmes, for appellant, L.V. Kotenberthal.

Tilmon Ford, for respondent, City of Salem.

LORD J.

This was an action under section 330 of the Civil Code, for damages alleged to have been caused by a private nuisance affecting the use and enjoyment of certain real property owned by the plaintiff. The trial resulted in a verdict assessing the damages to the property at $100. At this stage of the proceedings the plaintiff filed a motion for judgment on the verdict, which was allowed, and also included in the same a further motion for an order directing a warrant to issue to the sheriff requiring him to abate the nuisance complained of, which, at a later day of the same term, after hearing, was refused and disallowed by the court. From the refusal of the court to make this order the appeal is taken.

The contention of the plaintiff is that the verdict is conclusive of the fact that the ditch was a nuisance, and by reason thereof it was error in the court to refuse to make an order directing the sheriff to abate it. The adverse action of the court complained of was, evidently, based on the facts disclosed by the record, including, perhaps, its own knowledge of the evidence introduced at the trial, which showed that the nuisance had ceased, or that the remedy sought was inadequate to abate or prevent the continuance of the nuisance. WATSON, J., said in Ankeny v. Fairview Milling Co. that "the hearing of the motion for such order is for the purpose of ascertaining whether the nuisance has ceased, and, if not, whether the remedy by abatement would be adequate." 10 Or. 400. Now, on the record before us, it may be that the court was of the opinion that the nuisance had not ceased and yet, from the facts disclosed by the affidavits, and its own knowledge of the evidence introduced at the trial, became satisfied that the remedy sought was inadequate. In a word that the remedy in equity would be more effective where all the rights of the parties could be fully investigated, and the decree found with greater care and more exact reference to the grievance complained of, or the nuisance to be abated. The court may have found, as asserted, that the nuisance had not ceased, nor the plaintiff waived her right to have it abated, and still, consistently and lawfully, refused to make an order for the warrant to abate it on the ground of its inadequacy. This would leave the door open to proceed in equity. It is not difficult to understand why, in such actions, the courts are not disposed to interfere in the summary way of abatement, when other remedies are not exhausted which can do more complete justice to the party injured.

The verdict, then, cannot have such conclusive effect as to make the issuance of the warrant, or order for the warrant, by the court, as a matter of course. To allow this, would destroy all discretion in the court, and render the hearing upon the motion a nugatory and absurd proceeding. In Bemis v. Clark, 11 Pick. 454, it was held, under a statute which provides that, where a judgment shall be rendered for the plaintiff in an action on the case for a nuisance, "he may, on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance," leaves it within the discretion of the court to grant or refuse such motion. Mr. Wood says: "It is proper to say, however, that courts hesitate to apply these statutory remedies, and do not generally encourage them; and parties, in a proper case, will find far more easy redress for their grievances from nuisances in a court of equity than in a court of law. Courts of law will always exercise their discretion in these matters, and, so far as my researches have extended in that direction. I have found that it is only in extreme cases, even when the defendant has been convicted under an indictment therefor, that they will order the prostration or removal of the nuisance. They prefer to leave the parties to their redress before a tribunal of larger powers and more effective remedies, where all the rights and equities of the parties can be fully investigated. And this course is not one of doubtful wisdom, and has rapidly grown in favor within the last half century." Wood, Nuis. § 843.

Now, the facts disclosed at the trial, or at the hearing of the motion, may show that the nuisance has ceased, or is a continuing one, or that the remedy in such action is inadequate to effectively redress the grievance complained of, rendering a resort to equity necessary, as the case may be. This must be made in some way to appear upon the record before we can determine whether there has been any error committed. It is unquestioned that all of the facts are not before us which formed the basis of the court's action, and the record, therefore, is too incomplete to furnish sufficient data upon which to adjudge error.

The judgment must be affirmed.

THAYER J., (dissenting.)

This appeal is from a final order made by the circuit court for the county of Marion, in an action at law, after judgment. The action was commenced by the appellant against the respondent in the said circuit court on the twenty-sixth day of May, 1884. The appellant in her complaint in said action alleged that respondent was, and during all the times of the commission of grievances therein mentioned had been, a private corporation, organized under the laws of Oregon, and had an office for the transaction of business in the city of Salem, Marion county, which city was a municipal corporation, duly constituted by an act of the legislative assembly of the state of Oregon, approved October, 1862, and by subsequent acts amendatory thereof; that appellant was a married woman, and was, and had been during said time of the grievances before referred to, the owner in fee-simple of a certain parcel of real estate situate in said city of Salem, and which appears from the allegations of the complaint to be a parcel of land bounded on the west by the east line of Commercial street, and on the south by the north line of Division street, two of the streets in said city; that its extent along said line of Commercial street is 165 feet, and along said line of Division street 182 feet and 6 inches; that there was situated upon the said premises the family residence and other buildings suitable to the enjoyment thereof, including a barn at the south-east corner of the same next to said Division street, also a large number of ornamental and fruit trees; that during the year 1883 the defendant, by its agents and servants, wrongfully dug a large ditch or canal along said Division street, past the appellant's said house, which ditch was about 20 feet wide and 15 feet deep, and maintained a flowage of water of about 10 feet in depth, and wrongfully caused the earth to be removed and thrown up on either side of the same, thereby raising an embankment of about 6 feet in height near the point of ingress and egress to the appellant's said barn and her said residence; that, by reason of the said wrongful construction of said ditch, the appellant and her tenants have been greatly annoyed and inconvenienced in the use of her said property in going to and from the same, both on foot and with teams; that the water from said ditch constantly percolates through the earth into appellant's cellars, causes them to be constantly damp and foul, and, in the winter season, to fill with water; that by means of the percolating of said water from said ditch onto the appellant's premises the ground is constantly soaked, the said trees are thereby greatly injured, and many of them have been killed; that said wrongful acts of said respondent create a nuisance to appellant's said property, to her damage of $1,000, for which sum she demanded judgment.

The respondent filed an answer to said complaint, denying the allegations therein contained relating to the ownership of the property, and the alleged wrongful acts; and, for a further defense thereto, alleged that the city of Salem under said acts of incorporation, had power to pass and, make an ordinance, and on the twenty-sixth day of July, 1882, did duly authorize by an ordinance, duly passed by its common council, the said respondent to construct the said ditch for the purpose of...