Schweiger v. Solbeck

• Decision Date: 04 April 1951
• Citation: 191 Or. 454,29 A.L.R.2d 435,230 P.2d 195
• Parties: , 29 A.L.R.2d 435 SCHWEIGER et al. v. SOLBECK et al. HONIG et al. v. SOLBECK et al.
• Court: Oregon Supreme Court

Page 195

230 P.2d 195

191 Or. 454, 29 A.L.R.2d 435

SCHWEIGER et al. v. SOLBECK et al.

HONIG et al. v. SOLBECK et al.

Supreme Court of Oregon.

April 4, 1951.

Wallace A. Johansen, Coos Bay (McKeown & Newhouse, Coos Bay, on the brief), for appellants.

Wesley A. Franklin, Portland (Lord, Anderson & Franklin, of Portland, on the brief), for respondents.

Before BRAND, C. J., and HAY, ROSSMAN, WARNER and TOOZE, JJ.

HAY, Justice.

These are two separate actions based upon the same facts. The plaintiffs in each case owned real property fronting on Ten Mile Lake, in Coos County. The properties are adjacent. They measure 50 feet on the side fronting the lake and approximately 380 feet in depth. Upon each property, prior to the event hereinafter mentioned, there stood a furnished cabin. Beginning about 100 yards from the back line of the property, a steep ravine or draw extends. The lower part of the draw ascends on a fairly easy grade, but the rest is much steeper. The rate of ascent or gradient varies between about 30% and 70%. In June or July, 1947, the defendants began logging a tract of second growth timber in the ravine and on surrounding land. The logging operation, as far as the timber in the ravine was concerned, was completed in September, 1947. A considerable amount of debris, technically called slashing, and consisting of limbs, broken tops, and small trees and brush uprooted in the operation, remained along the sides and bottom of the ravine. In the late fall, after the rainy season set in, an unsuccessful attempt was made by the loggers to burn such slashing.

During December, 1947, and the early part of January, 1948, there was a period of heavy rainfall. On January 6, 1948, a mass of this logging debris was carried from the ravine onto and over plaintiffs' property, either by a flood of water, or by a landslide, or by a combination of both, demolishing plaintiffs' cabins and covering their land with mud, silt and debris. Plaintiffs thereupon instituted these actions.

The complaints are identical in form. They charge the defendants with negligence and carelessness in the conduct of their said logging operation, 'in that they failed to clean up the fallen logs and brush and general debris left' thereby, and allowed the same to collect in such manner 'that it diverted the natural flow of the water from said land into Ten Mile Lake and caused the water to back up on said land in large pools.' They recite that, as a direct and proximate result of such negligence and carelessness, fallen timber, logs and brush were carried onto and across plaintiffs' property, destroyed their cabins, and carried onto such property mud, silt, logs, brush and general debris. Each complaint demanded general damages of $3,000, and special damages of $500 for the expense of clearing the debris from the property.

The defendants answered by general denial in each case, admitting, however, that they conducted the logging operation, and that some slashing therefrom and some soil were carried to plaintiffs' property. Affirmatively, their answers alleged that they conducted their logging operation with skill, with due care toward the property of others, and in compliance with the statues of Oregon regulating such operations; that the movement of slashing and soil from defendants' premises was caused by circumstances over which they had no control, and which, in the exercise of due care, they could not prevent, namely, acts of God; more specifically, that, immediately prior to the happening of such movement, excessive rains fell in that area and upon the locus in quo; that such excessive rains caused the earth to become saturated, resulting in numerous landslides, including landslides affecting defendants' and plaintiffs' properties; that the premises logged by defendants consisted of steep, sloping ground; that the landslide affecting defendants' and plaintiffs' properties began at the base of a slope on plaintiffs' premises; that such landslide removed the natural support from defendants' premises on adjacent and higher ground, resulting in the slipping of the soil and slashings thereon to the lower and adjacent ground at the base of the slope; that such movement of soil and slashings, and the movement of earth and logs on plaintiffs' premises, were caused by the excessive rains, saturation of earth and resulting landslide; and that such rains and landslides were acts of God, and were the sole, direct and proximate cause of the plaintiffs' damages, if any.

Appropriate replies were filed by the respective plaintiffs, and the causes, being at issue, were consolidated for trial. Trial resulted in a verdict for plaintiffs for $1500 in each case. Judgments were entered accordingly, and defendants have appealed.

The defendants assign error upon the refusal of the trial court to allow their motions for nonsuit and for directed verdict. They contend not only that plaintiffs failed to prove a cause sufficient to be submitted to the jury, § 6-201, O.C.L.A., as amended by ch. 313, Oregon Laws 1941, but also that they adduced literally no sustaining evidence whatever. Camirand v. De Lude, 124 Or. 189, 192, 264 P. 355.

We have reviewed the evidence in the light most favorable to the plaintiff, as the rule requires. Funkhauser v. Goodrich, 187 Or. 220, 223, 210 P.2d 487. We find that there was substantial evidence to the following effect: After the logging was completed, the ravine was full of debris, logs and limbs. The sides of the ravine were so steep that a considerable quantity of debris had slid down to the bottom. Evidence on the part of defendants indicated that the logging operation was carried on in the usual, customary manner, and that when it was completed the ground 'looked on an average like any of the rest of the country that is logged.' But there was no evidence that the steepness of the ravine, the close proximity of plaintiffs' premises thereto, and the fact that there was a watercourse along its bottom which carried water in the rainy season, caused defendants to take any special care in their logging to protect plaintiffs' property. As to the steepness of the ravine, defendants' logger, Mr. Anderson, testified: 'A. I will say that it was just steep enough that it took a well experienced logger to get up and down like a man should. A greenhorn could never have done it, it was plenty steep, in fact a lot of them [sic] stood on their ends.'

He said that when they logged on the steep slopes above, tree tops, slashings, and discarded limbs and poles slid down into the ravine. Photographs in evidence show large piles of logging debris lying upon plaintiffs' property. The defendant, H. V. Solbeck, testified that a lot of trees smaller than 18 inches [at the butt] were knocked down in the logging operation, and that the logs showing in the photographs were 'probably small stuff that fell as we yarded in there.'

There were no eye-witnesses to the catastrophe, but there were upon the premises physical indication from which it might have been inferred that a considerable flood of water had come down the ravine. Such evidence consisted of water marks and other indications of a flood of water with a crest of from 12 to 15 feet high, which water marks, etc., were not present before the event complained of. One of defendants' witnesses, Mr. D. L. Buckingham, a civil engineer, who visited the premises a few days after the event, admitted that he had stated to plaintiffs on that occasion that it would require probably a 30-foot wall of water to wash out those cabins 'that way.' He said, but plaintiffs denied, that he added that he couldn't see where that water could come from; where it could accumulate.

There was evidence that the recent rainfall had been heavy, but nothing unusual considering the time of year and 'in view of the fact that this is Coos County.' One witness, who had resided in the vicinity for six years, testified that they had a rain like that four or five or six times a year. Another testified that the rainfall was very heavy for several days, but that he had seen it rain that hard any number of times. With a normal run-off when it was raining hard, he said the ravine carried a stream of water four feet wide and six inches deep.

Edwin J. Throckmorton, a former owner of plaintiffs' property, had visited the premises about three weeks before the catastrophe. He testified that at that time the ravine was full of brush and debris, consisting of tree tops and limbs, in excessive quantities. He visited the premises again within a day or two after the event, and found thereon a considerable quantity of very soft mud on which there were resting and embedded a great number of logs of all sizes, some quite large, and some small stuff from six to twelve inches in diameter, tops of limbs, and debris of all descriptions, including some logs three feet in diameter or possibly larger. Where the Honig cabin had stood, or very near there, there was quite a large pile of logs. It was resting on mud, and there was some mud on the pile, but it was certainly not covered with mud or dirt. Logs and debris from both cabins were strewn along the shore line of the little bay, both in the water and on the beach. Two timber pilings which had stood in front of the cabins had been snapped off.

Clyde Dahl, who lives within a quarter of a mile of the property and is familiar with it, visited the premises the next day after the disaster. He found the shore line in front of where the cabins had been 'full of logs and everything, way out in the lake, broken logs.' There had been no logs there before the cabins were destroyed. There were piles of logs scattered all over, fairly close together. He saw some earth, but not to amount to anything.

J. W. Sayre, another former owner, visited the property the second day after the event. He said that the bottom of the draw was absolutely clear. Everything had been washed out of it, and there were...