Northwestern Ice & Cold Storage Co. v. Multnomah County

• Decision Date: 25 October 1961
• Citation: 365 P.2d 876,228 Or. 507
• Court: Oregon Supreme Court
• Parties: NORTHWESTERN ICE & COLD STORAGE COMPANY, a Corporation, Respondent, v. MULTNOMAH COUNTY, Oregon, Appellant.

Page 876

365 P.2d 876

228 Or. 507

NORTHWESTERN ICE & COLD STORAGE COMPANY, a Corporation, Respondent, v. MULTNOMAH COUNTY, Oregon, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted July 7, 1961.

Decided Oct. 25, 1961.

Willis A. West, Chief Deputy of Civil Dept., Portland, argued the cause for appellant. With him on the briefs was Charles E. Raymond, Dist. Atty., Portland.

Stewart M. Whipple, Portland, argued the cause for respondent. On the brief were Seitz, Easley & Whipple, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN and LUSK, JJ.

PERRY, Justice.

This action was brought by the plaintiff as an abutting property owner to recover damages for injury caused by a change of grade on S. E. Morrison and S. E. Belmont streets, pursuant to ORS 373.040. The jury returned a verdict for the plaintiff and the defendant appeals.

The record discloses that plaintiff operates a refrigeration and cold storage plant in Block 45 of East Portland, which abuts on S. E. Belmont street, S. E. Morrison street and S. E. First avenue. In 1955 the defendant commenced the construction of a viaduct over Morrison and Belmont streets and pillars were erected on these streets to carry the approach ramps to the viaduct.

This work was completed May 24, 1958.

Plaintiff contended that the pillars erected on Belmont street prevented the large refrigerator trucks from using the main entrance on Belmont street and that the pillars on Morrison street would not permit a satisfactory main entrance to be constructed on that street. There is in the record substantial evidence to support these contentions.

The access to the plant having been obstructed on S. E. Belmont and S. E. Morrison streets, plaintiff, in order in some degree to carry on its business, was required to use an entrance on S. E. First avenue for the servicing, loading and unloading of large trucks and semi-trailers. This entrance formerly was used only for the loading and unloading of railroad cars served by a spur track of the Southern Pacific Company. Also, there were located on S. E. First avenue two mainline tracks of the Southern Pacific Company, and in order to use this means of access to the plant it was necessary for the drivers of the large vehicles to place them across these tracks and then back and jackknife the vehicle to reach a loading dock, which was constructed over and upon the spur track of the Southern Pacific Company. This dock would interfere with the full use of the trackage by the railroad company.

The Southern Pacific Company holds an easement granted it by the city of Portland to operate over and upon S. E. First avenue, this street being only partially improved for vehicular and pedestrian travel, and the railroad demanded the removal of the loading dock upon and over its spur trackage.

The defendant assigns error in the refusal of the trial court to give the following requested instruction:

'I further instruct you that S. E. First Avenue in east Portland between S. E. Morrison Street and S. E. Belmont Street is a public street and thoroughfare and as such may be used by the general public and abutting property owners in travel to and from the premises of the plaintiff, and in this regard, plaintiff is entitled to use the said First Avenue for ingress and egress purposes along the west side of its buildings, and to use said street for the purpose of parking, loading or unloading vehicles.'

The defendant contends that, since there was evidence to the effect that the Southern Pacific Company 'claimed exclusive right to the use of S. E. First Avenue, it was entitled to have the jury instructed as to plaintiff's legal rights as an abutting property owner.'

Our reading of the record does not indicate that the Southern Pacific Company claimed any right to exclude the public or abutting landowners of their due rights in the use of First avenue. But, apart from this, the trial court did, in substance, instruct the jury as requested by the defendant, the court saying:

'You are instructed that the owners of property facing and abutting on the streets in question have a right to the free and convenient use of and access to and from the streets and have a right to receive light and air from the streets. This right of access is a right to come onto and leave the property by way of the streets. It is often referred to as the right of ingress and egress. Ingress means coming into or entering a piece of property. Egress means leaving or departing from a piece of property. This right of ingress and egress includes the right to have vehicles and trucks come from the street onto plaintiff's property and from the property onto the street * * *'.

Where the substance of a requested instruction is given it is not error to deny a requested instruction upon the same issue. Wills v. Petros, Or., 357 P.2d 394; Hamacher v. Tumy, 222 Or. 341, 352 P.2d 493.

Also, the issue sought to be raised by defendant's claim of error is not contained in its requested instruction. If the defendant wished to have the jury instructed as to the respective rights of the abutting landowner and the railroad company so that the jury might be informed as to the respective rights of plaintiff and the railroad company in First avenue, an instruction setting forth the rights of each should have been requested.

There was no error in the denial of defnedant's requested instruction.

The defendant assigns as error the trial court's denial of its motion for a new trial. The basis of this assignment of error is newly discovered evidence. The newly discovered evidence consists of ordinances which permit the maintenance of railroad tracks upon S. E. First avenue and which reserved to the city the right to have the railroad company remove its tracks when so ordered by the city.

Motions for new trials based upon claims of newly discovered evidence are not favored. Newbern v. Exley Produce Express, 208 Or. 622, 303 P.2d 231. A fundamental requirement to invoke the court's discretion to grant such a motion is a showing by the moving party that he could not, with reasonable diligence, have discovered and produced this evidence at the trial. ORS 17.610(4). This court carefully pointed out this burden when we stated in Lewis v. Nichols, 164 Or. 555, 570, 103 P.2d 284, 290:

'* * * A presumption confronts the moving party that he failed to exercise due diligence before the trial, it being presumed that he would have discovered the evidence in time to have presented it during the trial had he employed reasonable industry. That presumption is founded upon good sense, for common experience teaches us that since virtually everyone regards a lawsuit as a serious matter, litigants generally discover all available witnesses before the trial. But the disfavor with which a motion for a new trial is regarded is also the product of necessity--the necessity for spurring on the parties to the discovery before trial of all available facts in order that repetitions of the trial may be avoided.'

It must have been as apparent to the trial court as it is to this court that to defend this case, in which plaintiff was seeking $425,000 damages and one of its claims for this damage was based upon loss of ingress and egress to its property, all means of meeting this contention should be explored. Since plaintiff was claiming loss of ingress and egress to its property, and a cursory examination of the streets abutting plaintiff's property would have immediately disclosed the presence of the railroad tracks upon the surface of First avenue, this should have led to an immediate inquiry into the respective rights of the railroad company and the plaintiff as to the use of the street.

It is shown by defendant's affidavits that the ordinances were of record and were at all times reasonably available. Failure to seek out available evidence material to a party's cause is not due diligence.

The trial court did not err in denying defendant's motion for a new trial.

The defendant's third assignment of error is that the trial court submitted an improper form of verdict.

The verdict permitted the jury to determine the plaintiff's damage and provide statutory interest of 6% from May 24, 1958, the date of injury to plaintiff's property.

Plaintiff's cause of action, which is based upon consequential damages by reason of the change in the street grade, did not exist prior to legislative action, for such consequential damage was not a taking of the property as in condemnation. Barrett et al. v. Union Bridge Co., 117 Or. 220, 243 P. 93, 45 A.L.R. 521; Brand v. Multnomah County, 38 Or. 79, 60 P. 390, 62 P. 209, 50 L.R.A. 389.

The legislature in 1939 passed ORS 373.040, which reads in full as follows:

'(1) If consent is given by the governing body of any city to change any grade of any street as such grade has been established or maintained by the consenting city and pursuant thereto the State Highway Commission or a county changes the grade, the state or the county, whichever makes such change of grade, shall be liable for and shall pay just and reasonable compensation for any damage or injury to any real property abutting upon the road or street affected by the grade change.

'(2) Any person having any right, title or interest in any such real property has a cause of action against the state or against the county to enforce payment of the compensation. Any such action may be commenced and maintained in the circuit court for the county in which the real property is situated. Any party to any such action has the right to appeal from the final judgment of any circuit court to the Suppreme Court. Any person having or claiming any right, title or interest in such real property may join as party plaintiff or may intervene in any action involving the real property in which the interest is claimed.

'(3) The trial circuit court shall, in its final judgment, apportion such just compensation as it may award...