Wilson v. City of Portland
| Decision Date | 26 May 1936 |
| Citation | 153 Or. 679,58 P.2d 257 |
| Parties | WILSON v. CITY OF PORTLAND. [*] WILSON et ux. v. SAME. WILSON v. SAME. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Hon. James W. Crawford Judge.
Actions by Samuel V. Wilson, by Wilson V. Wilson and Maggie Wilson husband and wife, and by Maggie Wilson against the City of Portland, a municipal corporation, which were commenced in the district court and were appealed to the circuit court where the case brought by Samuel V. Wilson and the case brought by Maggie Wilson were consolidated for trial. From the judgments, the defendant appeals, the three cases being consolidated on appeal.
Judgments affirmed.
Frank S. Grant, City Atty., and James West, Deputy City Atty., both of Portland, for appellant.
B. G. Skulason, of Portland (J. S. Middleton, of Portland, on the brief), for respondents.
These three cases, consolidated on appeal, arose out of a nuisance created by the defendant city in dumping garbage into a deep ravine adjacent to the property owned in the entirety by Samuel V. Wilson and his wife, Maggie Wilson. There is no bill of exceptions. The decision hinges upon whether the court erred in denying the motions of the defendant for judgment on the pleadings.
The first action was brought in the district court for Multnomah county by Wilson and his wife to recover damages on account of the loss of rental of the three houses owned by them. It was alleged in the complaint, in substance, that the defendant made a so-called "sanitary fill" on the westerly side of Interstate avenue at Beech and Fremont streets in the city of Portland near the property of the plaintiffs; that defendant in so doing created and maintained a nuisance in that it caused and permitted "poisonous offensive smells, fumes and odors" to pollute the atmosphere near and upon their premises rendering the same uninhabitable and destroying the rental value thereof in the aggregate sum of $440.
The defendant answered admitting the dumping of the refuse into the fill in question and conceding that the odors and fumes of decaying vegetation were "somewhat offensive on and near the fill"; but denied that the fumes were poisonous or that they sufficiently polluted the atmosphere to interfere with the occupancy of the premises owned by the plaintiffs or that plaintiffs sustained any loss of rental by reason thereof.
While this action was pending, Maggie Wilson commenced a separate action in the district court to recover damages on account of the dumping of garbage in the ravine, alleging that the defendant "wrongfully and unlawfully has permitted poisonous and offensive smells, fumes and odors to escape from said fill and to pollute the atmosphere in the vicinity and surrounding the aforesaid property occupied by the plaintiff and has permitted said fumes, smells and odors to penetrate the said residence occupied by the plaintiff and has thereby greatly interfered with the plaintiff's comfort and enjoyment of her said premises by preventing normal sleep, contaminating food, rendering the air foul and unfit to breathe and causing a deposit of dirt and grime on all exposed surfaces both on the inside and on the outside of said house, all to her damage in the sum of $1,000.00." A similar action was commenced by Samuel Wilson based upon substantially the same allegations of fact as made by his wife. The Maggie Wilson case was heard in the district court on its merits and a judgment rendered in favor of the defendant city. Thereupon the plaintiff appealed to the circuit court.
Thereafter the defendant filed a supplemental answer in the first action brought by Wilson and his wife for loss of rental, alleging as a plea in bar the judgment obtained by the city in the Maggie Wilson case. The court, after denying motion for judgment on the pleadings, entered judgment in favor of plaintiffs for $84. The defendant city appealed to the circuit court.
In the Samuel Wilson case the defendant answered by way of plea in abatement that the plaintiff and his wife were owners by the entirety of the real property in question and that they had instituted an action against the defendant for loss of rent based upon the identical reasons alleged in the complaint. The court, after denying motion for judgment on the pleadings, entered judgment in favor of the defendant. The plaintiff appealed to the circuit court.
The circuit court, sitting without a jury, in the case of Wilson et ux. v. City of Portland, denied motion for judgment on pleadings and entered judgment for plaintiffs in the sum of $140 on account of loss of rentals. The two other cases were consolidated on trial in the circuit court, motions for judgments on the pleadings were denied, and a judgment in each case was entered in favor of the plaintiff therein for the sum of $50.
Under the pleadings of the plaintiffs in each of the above cases, it must be assumed for the purpose of consideration of the legal questions presented on this appeal that the city created and maintained a nuisance on its property as alleged. The city does not question the amount of damages-indeed, it could not on a motion for judgment on the pleadings.
The contention of the city is that all of the cases involved damage to real property and that such matter could and ought to have been determined in one action. In other words, the city asserts that there has been a splitting of the cause of action which arose out of a single tort. If this premise is sound-viz., that all the cases concern injury to property-the contention of the city must be upheld. The plea of res adjudicata would constitute a bar as there would be a merger of the judgments. If, however, the cases of Maggie Wilson v. City and Samuel Wilson v. City involved injury to the person, the plea of res adjudicata would not be well taken. An injury to the person of Samuel Wilson may be separate and distinct from an injury to the person of his wife. They may not be similarly affected by the fumes and odors coming from this fill adjacent to their property. Furthermore, it has been recently held by this court that, under section 1-811 (subdivision 8), Oregon Code 1930, it is not mandatory to join a cause of action arising from injury to the property with one arising from injury to the person even though caused by the same wrongful act or omission. See Winters v. Bisaillon (Or.) 57 P.2d 1095.
We concede it is difficult to ascertain from the complaints in the Maggie Wilson case and that of her husband whether the pleader was complaining of injury to property or person, but it is believed that the allegations are sufficiently broad and comprehensive to include both. The allegations that the odors and...
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