Lowell v. Pendleton Auto Co.

• Court: Oregon Supreme Court
• Writing for the Court: ROSSMAN, J. (after stating the facts as above).
• Citation: Lowell v. Pendleton Auto Co., 123 Or. 383, 261 P. 415 (Or. 1927)
• Decision Date: 22 November 1927
• Parties: LOWELL ET AL. v. PENDLETON AUTO CO.

261 P. 415

123 Or. 383

LOWELL ET AL. v. PENDLETON AUTO CO.

Supreme Court of Oregon, En Banc.

November 22, 1927

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Suit by Stephen A. Lowell and others against the Pendleton Auto Company. Decree for plaintiffs, and defendant appeals. Modified and affirmed.

This is a suit for an injunction to restrain the defendant from committing acts which the plaintiffs allege constitute a public nuisance; two of the plaintiffs we shall refer to as the Lowells, the rest of the plaintiffs as the Loves. The Lowells, as tenants by the entireties, own lot four (4) block five (5); the Loves own lot nine (9), block six (6) each of the original town site of Pendleton. The various fractional interests of the Loves is undivided. Both properties are used for residence purposes. The ownership of both the Loves and the Lowells runs to the center of Johnson street upon which the lots face each other from opposite sides of the street. The property occupied by the defendant adjoins the Loves, and runs about 125 feet along Johnson street, and about 100 feet on Court street, which interesects Johnson street at right angles. The defendant, a corporation is engaged in the general automobile business; it sells exchanges, repairs, and stores automobiles.

The complaint alleges that, since June of 1924, the defendant has used Johnson street as a place for the repair of automobiles, the inspection of motors, the storing of automobiles, both day and night, and for the purpose of testing automobile engines. It alleges that the defendant particularly stores in Johnson street old, used cars, and that the use made by the defendant of Johnson street has caused others to believe that the residents along Johnson street have no objection to the street in front of their homes being thus employed, and that therefore they also park their cars there for long periods of time. It is averred that, as a result, Johnson street has taken upon itself a shabby, neglected appearance. The complaint further states that the defendant's acts have caused pools of oil to be left in the street, from which oil is tracked into the homes of the plaintiffs; that gases are often created in the testing and running of motors in such quantities that they become offensive; and that, in the repair of automobiles in the street, loud noises are caused.

Plaintiffs allege that Johnson street is a residential street; that the property owners have expended time and money in adorning their properties with shade trees, and making their properties attractive. It is alleged that the defendant's acts interfere with plaintiffs' free access to their properties; disturb the quiet of the plaintiffs; detract from the attractiveness of their homes and from the home atmosphere; that the defendant's acts interfere with the plaintiffs' view; that the market value of their properties has been diminished 25 per cent., while the desirability of their properties for home purposes has been lessened 50 per cent.

These allegations of the complaint were denied by the answer, which, by way of further defense, alleged that Johnson street is devoted almost entirely to business; that the ordinances of the city of Pendleton permit unlimited parking along Johnson street, and that for more than 30 years the presence of a fire station, church, and small mercantile establishments along Johnson street have caused much parking of vehicles along the street; that at the present time there are several automobile establishments along Johnson street in the immediate vicinity of plaintiffs' property; and that whatever parking occurs there is due to the natural conditions produced by the general use of automobiles, and not by any of the defendant's acts. Based upon the foregoing circumstances, the defendant alleges laches on the part of the plaintiffs.

Upon the trial the lower court found that, since June, 1924, the defendant had used the block of Johnson street upon which plaintiffs' homes face as supplemental to the floor area of its establishment, and that it has inspected, repaired, and stored automobiles there. It found that the storing of automobiles in Johnson street occurred "frequently all day, and, upon occasions, day and night for several days"; that it had "incumbered this street with old, decrepit, and partly dismantled motor vehicles, * * * offensive to the well appearing of any street"; that its testing of the mechanical parts of motor vehicles in the street has rendered the street "noisy and uninviting"; and that these conditions have caused the street to become congested, so as to render traffic difficult in it. The court found that plaintiffs have suffered special damages and have sustained injuries in addition to, and different in kind from, that experienced by the public at large by reason of the defendant's acts in the following particulars: Denial to plaintiffs of access to their homes; a lessening in the market value of their homes, and a diminishing in desirability of their properties for home purposes; disturbances through noises caused in the street by defendant's acts; limiting the view from their windows and porches, and substituting for the view previously had rows of parked automobiles. It also found that, in the absence of the defendant's acts, the market value of the Lowell property was $7,500 and of the Love property $5,000.

James A. Fee, of Pendleton, for appellant.

Edward J. Clark, of Portland, and Archie C. McIntyre, of Pendleton, for respondents.

ROSSMAN, J. (after stating the facts as above).

An appeal in an equity suit in this state is tried in the appellate court de novo. Morse v. Whitcomb, 54 Or. 412, 102 P. 788, 103 P. 775, 135 Am. St. Rep. 832. We have therefore read carefully all the testimony, and have considered fully all of the exhibits. For us to set forth in these reports our comparison and consideration of the evidence would accomplish no permanent good. We shall therefore confine ourselves to the statement that we believe that a preponderance of the evidence supports the foregoing findings of the trial judge. He was able and bore a well-deserved reputation for industry and judicial capacity. His residence in Pendleton gave him a familiarity with this matter which justifies us in additional confidence in his findings.

Numerous objections were made to the introduction of evidence. In most instances where objection was made the testimony was taken over the objection. Fourteen assignments of error are based upon such introduction of evidence. In many instances, when the trial judge received the evidence, he stated that he believed it was inadmissible, but that the proponent could take it for the benefit of the record. We find that enough admissible testimony was received to support the findings referred to above; therefore we shall not consider these individual assignments of error grounded upon the reception of evidence.

Based upon the rule that an individual cannot sue to enjoin a public nuisance unless he has sustained an injury special and peculiar to himself, the defendant contends that it necessarily follows that the plaintiffs cannot join as parties plaintiff. Defendant demurred to the complaint "on the ground that there is a misjoinder of parties plaintiff; * * * on the ground that said complaint does not state facts sufficient to constitute a cause of suit." When the first witness was called, the defendant interposed an objection on the ground "that there is a misjoinder of parties plaintiff, and for the further reason that the complaint does not state facts sufficient to constitute a cause of suit." Section 68, Or. L., provides a party defendant may demur to the complaint when it appears upon the face of the complaint that there is a defect of parties. However, we have held:

"* * * That, as a ground of demurrer, means too few, and not too many. A demurrer alleging this particular objection can be interposed, therefore, only in case of a nonjoinder of necessary plaintiffs or defendants, and never in case of misjoinder." Tieman v. Sachs, 52 Or. 560, 98 P. 163.

Our cases are collected in Williamson v. Hurlburt, 99 Or. 336, 195 P. 562. This case is discussed in an illuminating manner in 1 Or. Law Review, 38. No error was committed in overruling the demurrer based upon misjoinder of parties plaintiff. The complaint stated a cause of suit; therefore no error was committed in overruling the demurrer based on this ground. Section 68, Or. L., also provides that the defendant may demur when it appears upon the face of the complaint "that several causes of action have been improperly united." Section 393, Or. L. provides:

"All persons having an interest in the subject of the suit, and in obtaining the relief demanded, may be joined as plaintiffs. * * *"

Had there been two suits, one by the Loves, the other by the Lowells, the testimony in each would have been similar, with the exception of the effect of the acts of the defendant upon the individual parties plaintiff. Under these circumstances we believe that the observations of the Massachusetts court in Cadigan v. Brown, 120 Mass. 493, as referred to with approval in the late case of Stodder v. Rosen Talking Machine Co., 241 Mass. 245, 135 N.E. 251, 22 A. L. R. 1197, are peculiarly apt:

"* * * The plaintiffs * * * have a common interest in the subject of the bill. They are affected in the same way by the acts of the defendants, and seek the same remedy against them. There is no danger of confusion in the trial, or of injustice to the defendants, from the joinder of the plaintiffs; but the rights of all parties can be adjusted in one decree, and a multiplicity of suits is prevented."

See, also, 20 R. C. L., Nuisances, § 95, p. 482.

We have held to similar...