Wilson v. Parent

• Decision Date: 04 October 1961
• Citation: 365 P.2d 72,228 Or. 354
• Parties: Delia V. WILSON, Appellant, v. Arthur C. PARENT, Respondent.
• Court: Oregon Supreme Court

Page 72

365 P.2d 72

228 Or. 354

Delia V. WILSON, Appellant, v. Arthur C. PARENT, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 11, 1961.

Decided Oct. 4, 1961.

Norman N. Griffith, Portland, argued the cause and filed a brief for appellant.

No appearance and no brief filed for respondent.

Before McALLISTER, C. J., and SLOAN, O'CONNELL, GOODWIN and BRAND, JJ.

BRAND, Justice.

This is a suit in equity by the plaintiff Delia V. Wilson against the defendant Arthur C. Parent, her son-in-law. It is alleged that the defendant was guilty of creating a nuisance by words and gestures, and plaintiff seeks an injunction restraining their repetition. The answer is in substance a general denial. After hearing on the merits, the trial court entered a decree denying any relief to the plaintiff and providing that neither party should recover costs. The plaintiff appeals.

It is alleged in the complaint that the plaintiff was and is the owner of a dower interest in certain real property therein described. Plaintiff alleges that she resides with her family on the property described and that the property is in a residential district. She then sets forth the location of the defendant's residence, which adjoins her property on the rear. It is further alleged that the 'Defendant has maintained and is maintaining a nuisance in the vicinity of plaintiff's said residence in that for many months prior hereto, defendant has from time to time while on the public streets, and otherwise, made vile and obscene gestures toward plaintiff and directed vile, obscene and profane language at her, * * *.' The complaint then enumerates six alleged acts of the defendant. They may be briefly summarized as follows: The leaving of garbage on the ramp to plaintiff's garage; the use on three occasions of vile and obscene language and gestures directed at plaintiff by the defendant while plaintiff was in her house or on the property, defendant being in Northwest Third Street adjacent to property occupied by plaintiff; one other like occasion with like conduct by the defendant standing on Northwest Third Street, the location of plaintiff not specified, and one occasion on which obscene words and conduct toward plaintiff occurred at the intersection of First and Twenty-Second Streets in the Linnton district 'not far from plaintiff's house' when defendant abruptly drove his automobile at plaintiff. All six incidents are alleged to have occurred between March 14, 1960 and March 21 of the same year.

It is alleged that all of the six acts of misconduct were done publicly and were done within sight and hearing of the plaintiff and within sight of 'any passers-by.' There is no allegation that anyone else saw the alleged misconduct. It is next alleged that the specified acts and conduct on the defendant's part 'greatly impair plaintiff's enjoyment of her said real property described as 10254 N. W. 109th Avenue by causing her great mental anguish and humiliation and render said property unfit for a residence for her,' and that unless the acts and conduct of the defendant are enjoined, irreparable harm will be done to the plaintiff 'in that said acts and conduct of defendant will be repeated and will continue * * *.' It is alleged that plaintiff has no plain, speedy or adequate remedy at law and that the 'damage and injury to plaintiff's psychological well being is not capable of full and complete compensation in damages,' wherefor plaintiff prays for temporary and permanent injunction restraining the defendant from such acts and conduct.

In support of the allegations of the complaint the plaintiff called her husband, Allingsworth Wilson, who testified, without contradiction, that he is the owner of Lots 1, 2 and 3, Block 4, in the town of Linnton, city of Portland, and that his wife has a dower interest therein and that both live on said premises. Mr. Wilson's property lies at the corner of Northwest 109th Avenue and Northwest Third Street, in Block 44. The defendant lives on Lots 9 and 10 in the same block, but at the corner of Northwest Third Street and 108th Avenue. Examination of the map (Exhibit 1) discloses that both houses abut upon Northwest Third Street on the easterly side thereof, the defendant's property being immediately to the south of that owned by plaintiff's husband. The home of the defendant's mother also abuts on Northwest Third Street and lies north and just across 109th Avenue from the Wilson property. Thus the property occupied by the plaintiff is sandwiched between that of the defendant to the south and that of defendant's mother to the north.

The evidence on which plaintiff bases her claim of nuisance is supported solely by the testimony of herself and her husband. It discloses that on three occasions in 1959 the defendant, standing on Third Street, at or near its intersection with 109th Avenue and adjacent to the Wilson property, made vile and obscene gestures directed at plaintiff. On one of these occasions the defendant called the plaintiff a prostitute. The gestures, according to the testimony, related to the sex act. On three occasions, in March 1960, the defendant directed vile and obscene gestures and language at the plaintiff while she was on the Wilson property, and on another occasion in March 1960 defendant repeated the same gestures. In addition to the instance which occurred in the sight and hearing of the plaintiff while she was on the Wilson property, she testified that on March 15, 1960, the defendant, without permission, left a box of garbage on the ramp of plaintiff's garage, which is in the street area of Northwest Third Street, and on the same day, the defendant drove his car at her in the intersection of First and Second Streets, about half a block from the Wilson home. The defendant's gestures were described as of two kinds, the one, a perpendicular finger movement, and the other, a gesture in the immediate vicinity of defendant's private parts, though not involving indecent exposure. We shall not soil the pages of the reports by describing in detail the language used by the defendant and directed at the plaintiff, as indicated by the testimony of the plaintiff, and corroborated on some occasions by that of her husband. Suffice it to say that the language was vile and obscene. A vivid imagination could scarcely conjure up words more filthy than those employed. Plaintiff testified that she could not continue to live on the premises under these conditions and that she suffered great emotional disturbance resulting from defendant's conduct.

The foregoing indicates the nature of the words and conduct on which plaintiff relies as establishing a nuisance, and concerning which she seeks, not damages, but an injunction. The foregoing does not, however, place the events in context.

The evidence discloses a long-standing feud between the plaintiff's husband and the defendant, resulting in reciprocal threats of violence. It also discloses a veritable Donny-brook between the plaintiff and the defendant's mother, when the one employed a paint brush and the other seized her opponent by the hair as a means of hostile propulsion. Another element in the context is found in the testimony of plaintiff's husband, speaking of his relationship with the plaintiff. We quote:

'Q. (By Mr. Atchison) When did you state that you had gotten married to Mrs. Wilson? A. April, 1957.

'Q. Has she ever lived in that house before that date? A. Yes.

'Q. When did she live there?

* * *

* * *

'The Witness: 1954.

'Q. And you were not married at that time, were you? A. No.

'Q. How long did she live with you in your house at that time? A. For about a year.'

From the evidence on both sides we conclude that the quarrel involving the plaintiff and her husband and the defendant and his mother has continued since the approximate date of the marriage of plaintiff's daughter to the defendant. We certainly cannot say that either party was without fault, but we do find that the evidence preponderates in favor of plaintiff's evidence concerning vile and obscene words and gestures, notwithstanding a clever explanation suggested by defendant. When asked if he was guilty of the described conduct, the defendant replied, 'Not that I know of.' Later he made a categorical denial.

It would seem reasonable at the outset to determine in what branch of the law the alleged facts fall and the rules applicable thereto.

As said in Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 90, 342 P.2d 790, 792:

'Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land. They may be distinguished by comparing the interest invaded; an actionable invasion of a possessor's interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance.' Citing 4 Restatement, Torts 224, Intro.Note Chapter 40.

In that case the statute of limitations was involved and it became necessary to determine whether the cause of action sounded in trespass or case, the limitation for the former being six years and the latter two years. Of course, the statute does not determine the nature of the case. The legal classification of the case determines the applicability of the statute. However, the statute, whether actually involved in a given litigation or not, does indicate a legislative recognition that these are two separate and distinct causes of action which may result in divergent results depending on the judicially determined nature of the case.

Confusion worse confounded prevails generally in the field of nuisance law. Prosser, Law of Torts, 2d ed. 389. This court has held that 'a private nuisance is anything done to the hurt, annoyance, or detriment of the lands or hereditaments of another, and not amounting to a trespass,' thereby recognizing the obligation to distinguish between the two. State...