Ream v. Keen
| Decision Date | 08 October 1992 |
| Citation | 314 Or. 370,838 P.2d 1073 |
| Parties | Merle REAM and Kathleen Ream, Respondents on Review, v. Gary KEEN, Petitioner on Review. CC 88-1608; CA A66238; SC S39195. |
| Court | Oregon Supreme Court |
Robert G. Ringo, Ringo & Stuber, P.C., Corvallis, argued the cause, for petitioner on review. With him on the petition was Patrick L. Hadlock.
Charles O. Porter, Eugene, argued the cause, for respondents on review. With him on the response was John White, Eugene.
Donald A. Haagensen and Kimball H. Ferris, Cable, Huston, Benedict, Haagensen & Ferris, Portland, filed a brief on behalf of amici curiae Or. Seed Council, Or. Seed Trade Ass'n, and Or. Rye Grass Growers Ass'n.
Joseph H. Hobson, Jr., Lien, Hobson & Johnson, Keizer, filed a brief on behalf of amicus curiae Or. Farm Bureau Federation.
This is a trespass action involving adjoining landowners. Plaintiffs seek personal injury and property damages "due to the intrusion of smoke and its lingering odor" caused by defendant's burning of field grass stubble on his adjacent field. The jury returned a verdict for defendant. The Court of Appeals reversed and remanded with instructions. Ream v. Keen, 112 Or.App. 197, 828 P.2d 1038 (1992). We affirm the decision of the Court of Appeals.
Plaintiffs' complaint contains a count in trespass and a count in strict liability. Only the trespass count is at issue here. 1
Insofar as the appeal is concerned, the evidence is without material dispute. Defendant is a farmer who raises grass seed. He obtained a permit from the Oregon Department of Environmental Quality to burn his field, pursuant to ORS 468A.580. Thereafter, he burned his field. Defendant's answer admits that smoke from his burning field "did drift upon the premises of the plaintiffs," and defendant's testimony at trial confirms that he knew that smoke would drift onto adjoining property.
After all parties rested, plaintiffs moved for a directed verdict, as follows:
"Then I want to renew my motion about having a directed verdict on liability in connection with trespass on the grounds that I have previously mentioned to the Court * * *."
The trial court denied the motion.
The dispositive issue is whether the court erred in denying plaintiffs' motion for "a directed verdict on liability." Two decisions of this court suggest that the trial court erred. Davis v. Georgia-Pacific, 251 Or. 239, 445 P.2d 481 (1968), was a trespass action, brought by a resident of Toledo against the defendant, which operated a pulp and paper plant in close proximity to the plaintiff's residence. The plaintiff alleged that vibrations, odors, fumes, gases, smoke, and particulates damaged her residence and plants. The plaintiff was awarded compensatory and punitive damages in the trial court.
Citing Martin v. Reynolds Metal Co., 221 Or. 86, 342 P.2d 790, cert. den., 362 U.S. 918, 80 S.Ct. 672, 4 L.Ed.2d 739 (1960), the Davis court affirmed the award of compensatory damages, holding that "the deposit of airborne particulates upon another's land constitute[s] a trespass even though the particulates [are] so small as to be invisible in the atmosphere." 251 Or. at 243, 445 P.2d 481. The opinion also quoted this paragraph from Martin:
Davis v. Georgia-Pacific, supra, 251 Or. at 243, 445 P.2d 481 (quoting Martin v. Reynolds Metals Co., supra, 221 Or. at 94, 342 P.2d 790).
Davis remains the law of Oregon and applies to the issues in this case. Because smoke from defendant's fire intruded on plaintiffs' property, plaintiffs' motion for a directed verdict on liability should have been granted. 2
Defendant's position, both at trial and before the Court of Appeals, was:
1. Trespass does not lie, because "the actionable invasion [is] so trifling that the law would not consider it";
2. "[T]here are enough parallels between nuisance law and trespass law in this case that the court should consider several elements of nuisance law [in] reaching a decision here." Defendant asserts that a "weighing process," such as is used in nuisance cases, be applied when considering whether there has been a trespass.
As to the first assertion, we do not disavow the statements in Martin v. Reynolds Metals Co., supra, 221 Or. at 95, 342 P.2d 790, that an intrusion may be so trifling that the law should not recognize it. This is not such a case, however. The intrusion of smoke in the case at bar is not so trifling as to merit no recognition whatever.
Defendant's second assertion was considered and rejected in Martin v. Reynolds Metals. Co., supra, 221 Or. at 90-94, 342 P.2d 790. If a trespass is established--and a trespass has been established in this case--and the plaintiff seeks damages on a trespass theory, it is inappropriate to engage in any "weighing process," such as weighing the hardship to the defendant against the injury sustained by the plaintiff. 3
In this court, for the first time, both defendant and amici have asserted other bases for affirmance of the trial court. They contend that, because field burning is a regulated activity, see ORS 468A.550 to 468A.620, the common law trespass doctrine should not apply; 4 that the "right to farm" statutes, ORS 30.930 to 30.947, bar application of common law trespass rules; and that the zoning laws pertaining to exclusive farm uses, see ORS chapter 215, preclude the application of trespass common law remedies. Those arguments were not made in the trial court or in the Court of Appeals, and we do not consider them further here. The trial court erred in denying plaintiffs' motion for "a directed verdict on liability."
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for a new trial on the issue of the amount of damages, if any, sustained by plaintiffs as a result of defendant's trespass, and to enter judgment accordingly. 5
1 The Court of Appeals did not reach the issue concerning the strict liability count, because it believed that its decision on the trespass count was "independently dispositive" of the case. 112 Or.App. at 199, 828 P.2d 1038. As well, we do not reach that issue.
2 ORCP 60 provides for a motion for a directed verdict. The rule contains no specific provision for a "directed verdict on the issue of...
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