Mark v. State Dept. of Fish and Wildlife

• Citation: 158 Or.App. 355,974 P.2d 716
• Parties: Glen D. MARK and Teri L. Powers, Appellants, v. State of Oregon, STATE DEPARTMENT OF FISH AND WILDLIFE, and State of Oregon, Division of State Lands, Respondents. 962019; CA A97066.
• Decision Date: 17 February 1999
• Court: Oregon Court of Appeals

Page 716

974 P.2d 716

158 Or.App. 355

Glen D. MARK and Teri L. Powers, Appellants, v. State of Oregon, STATE DEPARTMENT OF FISH AND WILDLIFE, and State of Oregon, Division of State Lands, Respondents.

962019; CA A97066.

Court of Appeals of Oregon.

Argued and Submitted June 16, 1998.

Decided Feb. 17, 1999.

Teri L. Powers argued the cause for appellants. With her on the briefs was Glen D. Mark.

John T. Bagg, Assistant Attorney General, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before WARREN, Presiding Judge, and EDMONDS and ARMSTRONG, Judges.

WARREN, P.J.

Plaintiffs have lived on Sauvie Island since June 1990. They bought their land, which is surrounded by the Sauvie Island Wildlife Area (wildlife area), in February 1990. The portion of the wildlife area near where they live is a popular location for public nudity to an extent that, plaintiffs assert, constitutes both a private and a public nuisance. Defendant Division of State Lands (State Lands) owns the wildlife area, which it leases to defendant Department of Fish and Wildlife (Fish and Wildlife). In this case, plaintiffs seek compensation for the effects of the nudity on their land and an injunction restraining defendants from allowing public nudity in the wildlife area. They also assert a claim in inverse condemnation on the ground that the effect of the nudity on the value of their land constitutes a taking for which they are entitled to just compensation. On defendants' motions under ORCP 21 A(8), the trial court determined that defendants are immune from liability under the Oregon Tort Claims Act because they were exercising a discretionary function and that plaintiffs had not stated a claim for inverse condemnation. It therefore dismissed both the original and amended complaints. We reverse on the injunction claims and otherwise affirm.

We begin by considering plaintiffs' first assignment of error, which is based on the following facts that they alleged in their original complaint. ¹ Defendants own, manage, and control the wildlife area, with the statutory purpose of developing it to provide wildlife management, wildlife-oriented recreation, and public hunting. The wildlife area contains several miles of undeveloped beaches along the Columbia River that attract public use for non-wildlife related activities. An increasing number of those users engage in open public nudity, which is not wildlife-oriented recreation. Defendants estimate the total number of yearly visits for that purpose to be in the thousands. Many of those users "parade naked throughout the year all over the wildlife area, including the roads and bushes, and on, around and in view of plaintiffs' and other's private residences."

The activities of the nude users have created a situation where plaintiffs, other local residents, and visitors to the area are helpless to prevent "continuous and oftentimes daily exposure" to full adult nudity. Plaintiffs and their family, friends, and guests have been forced to witness adult nudity and "repeated acts of depravity, illegality and lewdness" because of their location adjacent to defendants' lands. Plaintiffs, other residents, and other members of the public have reported those facts to defendants and informed them of the harm that results from the public nudity and related activities.

According to plaintiffs, defendants have the authority, obligation, and duty to control the activities of the public in the wildlife area in a way reasonably calculated to prevent harm to the rights and safety of adjacent landowners and the public in general and to the value of surrounding private property. Defendants have knowingly and intentionally failed to exercise that control in a way calculated to prohibit or reasonably restrict public nudity, resulting in harm to plaintiffs and their property. ² The harm to plaintiffs is that their use of their property and their social life have been restricted by their reluctance to expose themselves, family, friends, and guests to public nudity and open sexual activity, that they are fearful for their safety due to their proximity to the nude beach activities, that they are embarrassed, offended and angered by coming in contact with nude adult behavior, that their right to go for a walk and enjoy the public beaches adjacent to their home has been restricted by harassment from nude sunbathers, and that those things have greatly diminished the value of their property.

In the first and second claims in their original complaint, plaintiff asserted that defendants' actions constituted both a private (first claim) and a public (second claim) nuisance. They sought damages and an injunction prohibiting defendants from allowing the use of the wildlife area for public nudity. In their third and fourth claims, they alleged that defendants' actions so reduced the value of their property that it constituted a taking for public use, thus entitling them to damages for inverse condemnation under the state (third claim) and federal (fourth claim) constitutions.

The trial court dismissed plaintiffs's original complaint in its entirety for failure to state a claim. In their first assignment of error, plaintiffs argue that the trial court erred by dismissing the first and second (nuisance) claims. In their third assignment of error, which we discuss below, they assert that the trial court erred by dismissing the third and fourth (inverse condemnation) claims. ³ We turn to the first assignment of error.

The trial court dismissed the nuisance claims on the ground that defendants' actions came within the discretionary function exception to a public body's liability in tort. ORS 30.265(3)(c). After the trial court's decision, the Supreme Court held that that provision does not apply to an action for an injunction, because an injunction does not involve potential monetary liability. Penland v. Redwood Sanitary Sewer Service Dist., 327 Or. 1, 956 P.2d 964 (1998). At least as to the claims for an injunction, thus, the trial court decision was erroneous on the ground on which the trial court relied. However, the state also argued that the facts that plaintiffs alleged do not constitute a public or private nuisance. Because that argument, if correct, would support the trial court's decision dismissing those claims in their entirety, we begin with it.

The doctrines of public nuisance and private nuisance have different origins and protect different interests. However, many of the governing rules are the same, and we will therefore treat the claims together. A public nuisance is the invasion of a right that is common to all members of the public. Because the primary responsibility for preventing public nuisances is with the public authorities, a private action to enforce that right requires proof that the plaintiff suffered an injury distinct from the injury that the public as a whole suffered. A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land. The right to recover is in the person whose land is harmed. See Smejkal v. Empire Lite-Rock, Inc., 274 Or. 571, 574, 547 P.2d 1363 (1976); Raymond v. Southern Pacific Co., 259 Or. 629, 634, 488 P.2d 460 (1971); Restatement (Second), Torts (1979) §§ 821A, 821B, 821D, and introductory note.

Undesired exposure to sexual activity, such as the presence of a neighboring house of prostitution, is one of the traditional grounds for finding either a public or a private nuisance. See Prosser and Keeton on the Law of Torts, 5th ed. (W. Page Keeton, ed.1984), § 87 at 620, § 90 at 644; 66 C.J.S. 796, Nuisances § 45. In Blagen v. Smith, 34 Or. 394, 56 P. 292 (1899), the plaintiffs owned manufacturing and other businesses near the waterfront just north of Burnside Street in Portland. The defendant built cheap wooden buildings, called "cribs," on a neighboring lot, with the apparent purpose of renting them to prostitutes. The plaintiffs sought an injunction to prevent him from doing so on the ground that that use constituted a public nuisance. The evidence indicated, among other things, that a prostitute inside one of the buildings, "in undress uniform," would negotiate with a group of potential customers who were standing outside. 34 Or. at 407, 56 P. 292.

The Supreme Court noted that other courts held that keeping a house of ill fame was a private nuisance when it rendered the premises of a neighbor "unfit for comfortable or respectable occupation and enjoyment[.]" Id. at 405, 56 P. 292. The plaintiffs, however, sought an injunction on the ground that the "cribs" were a public nuisance, something that the Supreme Court accepted without question. Id. at 404, 56 P. 292. The issue, thus, was whether the plaintiffs were entitled to enjoin that public nuisance. To do so they had to prove that the effect of the nuisance on them was different in kind from that suffered by the public as a whole. The court held that it was different "All property in a city is affected by the maintenance of a bawdy house, just in proportion to its contiguity thereto, and the damage which such property sustains, while differing in degree, does not differ in kind; and, such being the case, the owner of any such property affected in the same general way as other property therein could not successfully invoke equitable relief to enjoin its continuance. But where, by reason of the proximity of such property to the public nuisance, disgusting scenes and sounds shock the sense of those whose property, or the enjoyment thereof, is affected thereby, the injury sustained is necessarily different in kind from that suffered by the public at large[.]" Id. at 407, 56 P. 292 (emphasis added).

We have not found any Oregon case that indicates that nudity in itself, with no clear sexual component, constitutes a nuisance. On the one hand, public nudity is not illegal unless it...