York v. Stallings

• Decision Date: 24 June 1959
• Citation: 217 Or. 13,341 P.2d 529
• Parties: Grant YORK and Iva L. York, Respondents, v. Jack L. STALLINGS and Thelma E. Stallings, general partners, doing business as Stallings Lumber Company, Oreg. Ltd., Jack L. Stallings, Thomas Win, C. W. Brenden and Harry R. Jacobs, general partners doing business as Milton Lumber Co., Oreg. Ltd., Appellants.
• Court: Oregon Supreme Court

Page 529

341 P.2d 529

217 Or. 13

Grant YORK and Iva L. York, Respondents, v. Jack L. STALLINGS and Thelma E. Stallings, general partners, doing business as Stallings Lumber Company, Oreg. Ltd., Jack

L. Stallings, Thomas Win, C. W. Brenden and Harry R. Jacobs,

general partners doing business as Milton Lumber Co., Oreg.

Ltd., Appellants.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 5, 1958.

Decided June 24, 1959.

W. P. Riddlesbarger, Eugene, argued the cause and filed briefs for appellants.

John F. Kilkenny, Pendleton, argued the cause for respondents. On the brief were Kilkenny & Fabre and John H. Kottkamp, Pendleton.

Before ROSSMAN, P. J., and LUSK, McALLISTER, and SLOAN, JJ.

McALLISTER, C. J.

This is a suit in equity brought by Grant York and Iva York, his wife, to enjoin defendants, who operate a sawmill, from interfering with the use and enjoyment of plaintiffs' premises and to recover damages. From a decree in favor of plaintiffs, the defendants have appealed.

Plaintiffs are the owners of a 320 acre farm situated about one and a half miles west of Milton-Freewater which they acquired in 1947. During that same year plaintiffs built a modern home on the property at a cost of about $25,000. The house was located just south of an unpaved country road which runs along the north side of plaintiffs' farm. The farm has been used to raise cattle, wheat, peas, alfalfa and some fruit.

In 1955 the defendants acquired the property across the road from plaintiffs' home and commenced construction of their mill. The mill included a modern electric sawmill, planing mill, chipper, dry kiln, log pond, refuse burner, and other facilities usually incident to such a plant. Construction of the mill began in March 1955 and operation of the mill commenced in September of the same year. The entire mill cost more than $680,000 and when in production employs approximately 80 persons with a monthly payroll of $50,000.

A railroad runs along the north side of defendants' property and the mill is served by a spur track that had been built to serve an apple packing warehouse formerly situated on the property. The warehouse had not been used for many years and had been torn down about 15 years before defendants acquired the property. When purchased by defendants the property was planted partly in alfalfa and partly in grapes. The area surrounding the mill was devoted to agricultural and residential uses, there being some 20 residences within a quarter mile radius. Since the removal of the old warehouse some years earlier, no commercial activity had been carried on in the area.

Plaintiffs complain that from the time it began to operate defendants' sawmill caused great quantities of smoke, sawdust, cinders, ashes and other particulates to be deposited on plaintiffs' premises and that the operation of the conveyor at night caused excessive noise. Plaintiffs also complain that the mill pond gave off an offensive odor which continuously drifted over plaintiffs' premises. Plaintiffs prayed for both general and punitive damages and for an injunction.

The trial judge did not make findings of fact but we have the benefit of a memorandum opinion prepared by him. He concluded that from the time the mill began to operate, partially burned sawdust and wood particles 'in no trivial amount' had been deposited in and about plaintiffs' home and that 'it was an unusual day when at some time it did not occur if the mill was running.' The judge was not convinced that the mill pond had caused any odor sufficient to cause substantial annoyance to plaintiffs. He was convinced that the chain of the conveyor carrying waste to the burner frequently operated at night and caused excessive noise sufficient to disturb plaintiffs' sleep to an unreasonable degree.

The court entered a decree enjoining defendants from burning the waste products of their sawmill except at a place which would prevent sawdust, cinders, ashes and other particulates from being deposited in and around the plaintiffs' premises and from operating the waste conveyor of the mill at night unless the noise from said conveyor could be effectively eliminated and awarded plaintiffs damages in the sum of $1,000. The defendants contend that this decree was erroneous and particularly object to the provisions thereof enjoining the burning of waste in the burner at the mill.

We have examined carefully the transcript of about 750 pages containing the testimony of nearly 30 witnesses. It would serve no purpose to review that testimony in detail in this opinion and we will merely set forth the conclusions which we have reached after a full consideration of all the evidence.

As to the complaint of excessive noise, we are satisfied that in the beginning the conveyor created a good deal of noise and when operated at night disturbed plaintiffs' sleep and caused them considerable annoyance. Remedial action was taken by defendants to reduce that noise and further improvements were about to be made at the time of the trial. These consisted primarily of lining and insulating the metal conveyor with hardwood. We do not know how effective these improvements may have been.

The witnesses who testified concerning the fallout of sawdust and cinders may be divided into several general groups. The first group includes the plaintiffs, their daughter and son-in-law and a number of friends and acquaintances of the Yorks. The testimony of this group tends to prove that the fallout of sawdust and cinders about the York home occurred so frequently and in such amounts as to substantially and unreasonably interfere with plaintiffs' enjoyment of their home. In support of their claim, the plaintiffs introduced into evidence the contents of a number of jars containing samples of fallout collected by Mrs. York at various times between May 15 and October 17, 1956, 17 samples in all. The irregularity of the sampling, the mixture of dust and grass particles therein, and the marked coincidence of the time of sampling and the deviation of the wind from its prevailing south to north direction, all detract from the cogency of this evidence.

The second group of witnesses consists of those who live on the north side of the burner. These witnesses testified that there was little or no fallout about their homes. Most of these witnesses live further from the mill than the Yorks but their homes were mostly on the leeward side of the mill. Generally, these people exhibited a friendly attitude toward the mill and some of them testified that it was a welcome addition to the community. The area had suffered a severe freeze which had wiped out most orchards in the community and the mill served to provide additional employment at a time of need. The testimony of these witnesses in many respects directly contradicts the testimony of the Yorks and their witnesses.

The third group of witnesses included the mill owners and their employees. Testimony of these people tended to prove that although there was some fallout it did not attain any significant proportions on the south side of the mill. Mr. Stallings, one of the defendants, admitted that there had been substantial fallout on the York premises when the mill started to operate. He testified that defendants had spent about $5,000 in an attempt to eliminate this fallout and contended that these improvements in the burner had reduced the fallout on the south side of the burner to the point where it was infrequent and not substantial.

The fourth group of witnesses consists of 'outside experts,' burner builders and repairmen. Their testimony showed that there was substantial fallout in the vicinity of the burner on the leeward side, but only a light fallout on the south side. This testimony revealed that the difficulty experienced with the burner's efficiency occurred mostly during the warm-up period--before the burner shell reached the full temperature necessary for efficient combustion. This warm-up period was variously estimated at from one and one half to two hours. The changes made in an effort to improve the burner reduced the fallout to some extent and at the time of trial tests were still in progress to determine the most efficient regulation of the burner drafts. Additional improvements in an effort to further reduce, if not eliminate, the fallout were contemplated, including the installation of a spray over the dome of the burner. We of course do not know whether these additional improvements have been made and to what extent, if any, they have proved effective.

Without the aid of accurate and impartial measurement of the frequency and intensity of the fallout on the York premises, it is difficult to draw final conclusions from the evidence with any sense of confidence. We have the feeling that some of the witnesses exaggerated the extent and frequency of the fallout and that others were prone to minimize the problem. Taking the testimony as a whole, it is evident that some fallout from defendants' burner fell at least intermittently on or about the York home. However, neither the amount nor the frequency of this fallout has been established by clear and convincing evidence.

Turning to the applicable rules of law, we first take note of the proposition that an injunction is an extraordinary remedy and will be granted only upon clear and convincing proof. De Armond v. Moon 123 Or. 28, 260 P. 1100; Bennett v. City of Salem, 192 Or. 531, 235 P.2d 772; Barker Painting Co. v. Brotherhood of Painters, etc., 3 Cir., 15 F.2d 16; Dolan v. DeCapua, 16 N.J. 599, 109 A.2d 615. See also 28 Am.Jur. 217, Injunctions § 24 and 43 C.J.S. Injunctions § 192, p. 889.

It is well settled that a sawmill is not a nuisance per se. Bourne v. Wilson-Case Lumber Co., 58 Or. 48, 113 P. 52 and Lindley v. Hyland, 173 Or. 93, 144 P.2d 295. It is clear, however, that a sawmill may become a nuisance by reason of the character of the neighborhood in which it is situated or the manner...