Moeller v. Multnomah County

• Decision Date: 30 October 1959
• Citation: 218 Or. 413,345 P.2d 813
• Parties: George H. MOELLER and Bernice E. Moeller, husband and wife, Respondents, v. MULTNOMAH COUNTY, a political subdivision of the State of Oregon, Appellant.
• Court: Oregon Supreme Court

Page 813

345 P.2d 813

218 Or. 413

George H. MOELLER and Bernice E. Moeller, husband and wife Respondents, v. MULTNOMAH COUNTY, a political subdivision of the State of Oregon, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 17, 1959.

Decided Oct. 30, 1959.

David Robinson, Jr., Deputy Dist. Atty., for Multnomah County, Portland, argued the cause for appellant. With him on the brief were F. Leo Smith, Dist. Atty., and Willis A. West, Deputy Dist. Atty., Portland.

John R. Sabin, Portland, argued the cause for respondents. With him on the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and KING, JJ.

KING, Justice pro tem.

This is an action for damages brought by George H. Moeller and Bernice E. Moeller, husband and wife, against Multnomah County, a political subdivision of the State of Oregon, for damages to their property by blasting operations conducted by the county at their rock quarry at Rocky Butte. The action is under the theory that there was a 'taking' of their property by the county by inverse condemnation.

From a jury verdict and judgment in favor of the plaintiffs in the amount of $2,500, the defendant county appeals to this court.

The principal question for determination in this case is: Does damage to plaintiffs' property resulting from jars and concussion from blastings, causing some damage but not causing loss of occupancy, amount to a 'taking' under Article I, § 18, Oregon Constitution, by inverse condemnation.

Multnomah County was at the time complained of, and had been since about 1940, operating a rock quarry at a site known as Rocky Butte where county prisoners, under the direction of the county roadmaster, engaged in quarrying and crushing rock for use on the county roads.

The plaintiffs-respondents, Mr. and Mrs. Moeller, resided on property located at 2765 Northeast 102nd Avenue, Portland. They had purchased the property in April, 1952. There home was located from 900 to 1,500 feet from the appellant's blasting operations, depending on what part of the quarry the particular blasting took place. The Moellers had never lived in Portland prior to purchasing the property. They claim that they were not familiar with the surrounding country and did not know of the blasting operations in the close vicinity to their property. They moved into their home in July, 1952. Before purchasing the property they looked over the house and premises and saw no cracks in the walls or other conditions that would indicate to them that any damage had been done up to that time.

Shortly after they moved into the property they heard and felt the blasting carried on at the rock quarry in varying intensity, sometimes mild, sometimes strong enough to shake decorative knickknacks off the shelves and knock pictures off the walls. The feeling was somewhat similar to being in an earthquake tremor. Shortly after the larger tremors or concussions, cracks were noticed in the concrete of the basement and patio floors and in the walls and ceilings of some rooms. On one occasion the top of the brick chimney in the patio was knocked or shaken off. There was damage to the cesspool which catches the water from wash basins and the eaves, and this caused some water to back up into the basement of the house. Various other substantial items of damage were testified to, and the cost of repairs and estimation of repairs were substantial.

The exact times or dates of the damaging blasts were rather indefinite, but plaintiffs had kept notes of some exact dates and times, and in their testimony claim that substantial damage was done during the period alleged in the complaint.

The evidence did not show that any rocks or debris were thrown onto plaintiffs' property, and the damage was confined to concussion-caused damage, other than Mrs. Moeller's testimony as to dust, as follows:

'A. * * * and there would be this dust. You couldn't actually see it in the air but when I was using my everyday dishes I wouldn't have to wipe it off, but dishes I would use for guests, on top of every stack of plates would be just like grit.'

Mr. Moeller, on redirect examination, testified regarding dust as follows:

'Q. Do you notice anything like dust or anything like that in the atmosphere when these blasts occur?

'A. Yes, when they blast on the hill and the wind is in a westerly direction it blows this grit over there and unless we get up and shut our windows quickly it gets in our house and the closets and our dishes and everything gets covered with it.

'Q. What is it? Is it just a dust?

'A. It is like a--it is fine dirt that the wind carries right over. It makes a terrific cloud when they set off a big blast--there's a terrific cloud of that and if the wind is just right it will bring it right over and it will come into your house.

'Q. Has this dust come into your house on numerous occasions?

'A. Yes.'

This is substantially the evidence the plaintiffs relied on, except, of course, testimony as to the alleged monetary value of the damage done.

The defendant offered evidence to show that Mr. and Mrs. P. J. Baumer, who sold the property to the plaintiffs in April, 1952, had suffered some damage from cracked walls, ceilings and floors, and were paid for it by the defendant shortly before the Moellers purchased the property. Defendant also offered testimony to the effect that the amount of powder used in the blasts, and that the strength and intensity thereof, had been greatly reduced since April, 1952. Originally, under WPA as high as twenty-one tons per charge were used. About 1951, while the Baumers owned the property, a couple of blasts of ten tons were used, then seven tons, then four tons, and, finally, the shots were limited to 1,000 pounds, and if over 500 pounds, the sheriff was to be notified first.

Mr. Oswald N. Day, who supervised the blasting, in addition to testifying as above summarized, testified:

'A. The only time we used over 500 pounds of powder after April, 1952 was, I believe, in February in 1954. We decided that we would hire a seismologist and get a seismograph up there and take recordings as to vibration to see the amount of powder we could use without doing any damage up there. And two tests were made in February of 1954. The maximum amount of powder used in those tests was 800 pounds.'

Defendant's Exhibit 3 is a record of all blasts since December 17, 1953.

The first complaint in this case was a claim for damages against the county as a tort action. Demurrer was sustained to this complaint. The amended complaint, which is now before us, was then filed and again asked for damages upon the theory of an alleged taking of plaintiffs' property under inverse condemnation. This amended complaint alleges:

'I.

'That plaintiffs are and at all times herein mentioned were husband and wife and the owners of certain land with a dwelling house situated thereon located at 2765 N. E. 102nd Avenue, Portland, Multnomah County, Oregon, and more particularly described as follows:

'Commencing at the common corner to Sections 27, 28 21 and 22, Township 1 North, Range 2 East of the Willamette Meridian; thence South along the line between said Sections 27 and 28, 2060.7 feet; thence West 30 feet to a point on the West side line of N. E. 102nd Avenue, formerly Craig Road, the true point of beginning of land to be described; thence South along the West line of the said N. E. 102nd Avenue 120 feet; thence West 471.5 feet more or less, to the Easterly boundary line of the right of way of the Oregon Railway and Navigation Co.; thence Northerly along the said right of way line to a point West of true place of beginning; thence East 465.5 feet to the true point of beginning, in the County of Multnomah and State of Oregon, except Westerly portion conveyed to State of Oregon by deed dated April 21, 1951, recorded May 1, 1951, in Book 1473, page 528, Deed Records of Multnomah County, Oregon.

'II.

'That Multnomah County is and at all times herein mentioned was a political subdivision of the State of Oregon.

'III.

'That from and after the 15th day of April, 1952, to the time of the filing of this amended complaint the defendant, its agents, servants and employees engaged in certain rock and stoneblasting operations in which it exploded or caused to be exploded large quantities of explosives at or near certain property owned by the defendant and known as Rocky Butte, Multnomah County, Oregon, and in close proximity to the plaintiffs' real property hereinabove described.

'IV.

'That said rock and stone-blasting operations were conducted by defendant in connection with and in furtherance of its operation of a rock quarry in conjunction with its operation of a County jail, both located at or near the said Rocky Butte.

'V.

'That at all times herein mentioned the defendant conducted said rock and stone blasting operations in disregard of plaintiffs' protests concerning the injury to plaintiffs' property, notwithstanding the fact that defendant knew that its rock and stone blasting operations were progressively damaging plaintiffs' property.

'VI.

'That the explosions above described were set off at intervals during the period of time above described and produced great and violent concussions and vibrations of the earth and air, which concussions and vibrations shook and vibrated the plaintiffs' land and dwelling house and the air above and around them and caused injury and damage to plaintiffs' land and dwelling house and interfered with plaintiffs' use and enjoyment thereof.

'VII.

'That said blasting operations produced recurrent vibrations causing cumulative damage and injury to said property as hereinafter described, and unreasonably interfered with plaintiffs' use and enjoyment of said house and land.

'VIII.

'That said damage and injury did not appear to an extent that could be measured exactly after each blast.

'IX.

'That damage and injury to plaintiffs'...