Bourne v. Wilson-Case Lumber Co.

113 P. 52 | Or. | 1911

Mr. Justice Burnett

delivered the opinion of the court.

From the testimony reported here it appears that the sawmill in question is located in a gulch running from south to north into the Columbia River in the town of Rainier. Plaintiff’s property is situated on a bluff about 40 or 50 feet above the level where the mill and slab fire are situated. The fire, as managed by the defendant, escaped, and, spreading through the brush adjoining plaintiff’s premises, burned his fences twice, totally destroying one apple tree and injuring other shrubbery and trees. The draft from the fire continually carries up into the air sawdust and cinders, and deposits them promiscuously over the houses and garden of the defendant on said premises. There are two small houses on plaintiff's premises renting from $8.00 to $10 per month when occupied, and valued by the different witnesses at from $350 to $700. The defendant’s sawmill proper represents an investment of $24,000, and the defendant has sufficient other capital embarked in the enterprise to make the total investment of $50,000. In the prosecution of its business it employs continually about 75 men in the mill and in the woods. Its pay roll averages from $175 to $200 per day, and it has an output of from 175,-000 to 200,000 feet of lumber per day.

1. It is contended by the defense that, the plaintiff having a plain, speedy, and adequate remedy at law, his suit in equity will not lie in the first instance, nor until he has established at law the fact that the defendant maintains a nuisance in the manner and form complained of. Equity, however, has concurrent jurisdiction in a case of continuing nuisance working special injury to a plaintiff not suffered in common with other persons: Fleischner v. Citizens’ Investment Co., 25 Or. 119 (35 Pac. 174); Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540 (57 Atl. 1065: 66 L. R. A. 712).

2. It is elementary that an injunction will not lie at the suit of a private person against a public nuisance unless the complainant has experienced some special injury arising therefrom which is not common to the general public. In this case, however, the testimony discloses that the plaintiff has suffered special injury peculiar to himself, in that his trees are damaged and destroyed, besides the deposits of sawdust and cinders, all happening on account of the way in which the defendant has carried on the burning of its waste products. The evidence is plain that, unless prevented, the defendant will continue the management of its business as in the past, and it follows that like conduct on the part of the defendant will probably produce like results in the future. Hence, under the authorities above mentioned, the suit of the plaintiff is well founded.

3. The question then is: What decree will the court make so as to preserve the rights of the plaintiff in the reasonable enjoyment of his property and at the same time not operate oppressively upon the defendant? In such cases it is always proper to consider the comparative injury which such an order will produce upon both parties, with this qualification, however, that comparative injury will not control the court as against an act or series of acts essentially tortious in their nature: American Smelting & Refining Co. v. Godfrey, 158 Fed. 225 (89 C. C. A. 139: 14 Am. & Eng. Ann. Cas. 8, and notes); Bliss v. Anaconda Copper Mining Co., (C. C.) 167 Fed. 342.

4. The basic principle is that the rights of the poor and humble, however small their property may be, are as sacred in the eyes of a court of equity as the vast possessions of the wealthy and powerful. But equality is equity, and the maxim that one should use his own so as not to injure another applies as well to the small owner as to the large owner, and each should be protected in the reasonable enjoyment of his own. The difficulty is not so much in ascertaining the abstract principle as in making a concrete application of the same, and each case must depend largely on its own particular facts. There is no allegation in the answer about the situation and condition of defendant’s property, and the evidence on that subject is almost as meager. We are of the opinion, however, that, enough is shown to make a case for the injunction, so that the same should be retained in some form, yet in such terms as to make it bear with qs little rigor on the defendánt as possible, consistent with the preservation of the rights of the plaintiff. The decree almost in the very words of the prayer of the complaint perpetually enjoins and restrains the defendant from burning the waste products of its sawmill on any portion of the land in its possession situated between its sawmill and the plaintiff’s property, or within 500 feet of plaintiff’s property. This would exclude the use of the most approved furnace made for such purposes at any point within 500 feet of the plaintiff’s premises, and it may be possible that 500 feet from the plaintiff’s property would be outside of the defendant’s property. The decree should be modified in part so that the defendant should be enjoined from burning the waste products of its sawmill at any place within 500 feet of the plaintiff’s premises except in such a furnace or other appliance as will effectually prevent cinders, ashes, sawdust, and other material from escaping and being deposited on plaintiff’s land, and so confine the fire that the same will not spread to palintiff’s real property described in his complaint. Owing to the paucity of the evidence on that subject, the court cannot here enter a definite decree, and can only point out in general terms the modification desired.

The decree of the court below will therefore be modified in accordance with the principles here announced, and the cause remanded, with leave to either party to apply to the circuit court upon such showing as may seem proper to the court for an order in the premises giving specific effect to this decision. Modified.