Swanson v. Warner , 125 Or. App. 524 ( 1993 )

RIGGS, J.,

dissenting.

Because I disagree with the majority’s analysis of plaintiffs claim for nuisance, I respectfully dissent.

The majority asserts that Jacobson v. Crown Zellerbach, 273 Or 15, 539 P2d 641 (1986), controls our disposition of the nuisance claim. In Jacobson, the plaintiffs expressly granted defendants an easement to use a roadway near their house. When trucks using the roadway according to the easement damaged the house, plaintiffs brought an action for nuisance. The Supreme Court held that the plaintiffs had no cause of action because a nuisance cannot arise from activities contemplated by an agreement between the parties.

Because the agreement in this case is fundamentally different from the agreement in Jacobson, Jacobson is inapposite. The activity expressly contemplated by this agreement is the development of building sites in a way that mutually enhances land values. The covenant at issue appears in a section labelled “Nuisances” and is phrased in the negative: there can be no view-blocking rows of trees or walls more than six feet tall. In the same section, a catch-all provision states that nothing may be maintained on the property that “may be or become a nuisance to the neighborhood.”

The majority reasons that, because the covenant at issue prohibits only rows of trees that block views, the agreement contemplates the maintenance of a single tree that blocks a view. That construction is erroneous for two reasons. First, the majority’s construction of the covenant adds permission to block a view with a single tree to a clause which creates an action at law to remove rows of trees. Addition of omitted terms is forbidden by ORS 42.230. Second, by permitting the maintenance of a single tree that depreciates neighboring property, the majority’s construction fails to give effect to the express purpose of the agreement (maximum land values for all building sites) and also fails to give effect to the catch-all provision forbidding things that “may be or become” nuisances. Construction of a contract should give effect to all provisions. ORS 42.230.

Nothing in the agreement prevents plaintiffs from maintaining an action for common law nuisance. Therefore, the next question is whether their claim for nuisance was properly dismissed under ORCP 21A(8). In reviewing a motion to dismiss for failure to state a claim, we accept as true the allegations and all reasonable inferences that may be drawn from them. A pleading survives a motion to dismiss if it contains even vague allegations of all material facts. Erickson v. Christenson, 99 Or App 104, 106, 781 P2d 393 (1989), rev dismissed 311 or 266 (1991). The material facts necessary to show nuisance are a substantial and unreasonable interference with the use and enjoyment of land. Jewett v. Dearborn Enterprises, Inc., 281 Or 469, 575 P2d 164 (1980). In Jewett, we held that noxious odors that prevented the plaintiffs from opening their windows interfered with the use or enjoyment of land. Here, the tree that prevents plaintiffs from enjoying the view from their windows likewise interferes with the use or enjoyment of land. An allegation that their land is worth $25,000 less without the view, adequately alleges that the interference is both substantial and unreasonable. Because plaintiffs adequately plead their nuisance claim, dismissal of that claim under ORCP 21A(8) was error.

I dissent.

Deits, J., joins in this dissenting opinion.