Lindley v. Hyland

• Citation: 144 P.2d 295,173 Or. 93
• Parties: LINDLEY <I>v.</I> HYLAND ET AL.
• Decision Date: 21 December 1943
• Court: Supreme Court of Oregon

173 Or. 93

144 P.2d 295

LINDLEY

v. HYLAND ET AL.

Supreme Court of Oregon.

Argued December 1, 1943.

Affirmed as modified December 21, 1943.

Appeal and error

1. Where plaintiff did not appeal from decree granting him injunction only, Supreme Court on defendant's appeal, cannot award plaintiff damages also prayed in complaint, though he suffered damages from acts enjoined.

Nuisance

2. Where smoke and cinders from burning shavings on planing mill operators' land so enveloped and permeated nearby residence of another as to constitute a nuisance, residence owner was entitled to injunction against burning of such shavings.

Nuisance

3. A decree, enjoining mill operators from hauling and burning on their premises sawdust, shavings and other refuse, as prayed by owner of nearby residence, which smoke and cinders from burning refuse so enveloped and permeated as to constitute nuisance, was too inclusive and should be modified so as not to include burning reasonably controlled by furnace or other appliance effectively preventing escape of cinders and diverting smoke from such residence.

                  Nuisance resulting from smoke and cinders as subject for
                injunctive relief, note, 6 A.L.R. 1575. See, also, 39 Am. Jur
                336
                  5 C.J.S., Appeal and Error, § 1498
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Suit in equity by Linus W. Lindley against Wilbur H. Hyland and others to enjoin, and recover damages for, burning of shavings, sawdust and planing mill refuse on defendants' premises near plaintiff's residence. From a decree granting an injunction, defendants appeal.

AFFIRMED AS MODIFIED.

S.M. Calkins, of Eugene (Calkins & Calkins, of Eugene, on the brief) for appellants.

Day T. Bayly, of Eugene (James M. Blackford, Jr., of Eugene, on the brief) for respondent.

KELLY, J.

Plaintiff, being the owner of lots 1, 2, 3 and 4 of block 24, of Riverwood, a platted district adjacent to the corporate limits of Eugene, Oregon, and maintaining a residence thereon of the approximate value of $4,000, instituted this suit against defendants Wilbur H. Hyland and Daisy S. Hyland, his wife, and Dorilla J. Sommers, their partner, to enjoin and restrain defendants from burning shavings, sawdust and planing mill refuse upon premises, owned by defendants Hyland in proximity to plaintiff's residence; and for judgment for damages in the sum of $500.00. The trial court entered a decree enjoining and restraining defendants from hauling upon the premises, described in the complaint, and burning thereon, sawdust, shavings and other sawmill and planing mill refuse of any character; and...