Kothenberthal v. City of Salem Co.

Lord, J. This was an action under section 330 of the Civil Code for damages alleged to have been caused by a private nuisance affecting the use and enjoyment of certain real property owned by the plaintiff. The trial resulted in a verdict assessing the damages to the property at one hundred dollars. At this stage of the proceedings, the plaintiff filed a motion for judgment on the verdict, which was allowed, and also included in the same a further 'motion for an order directing a warrant to issue to the sheriff requiring him to abate the nuisance complained of, which, at a later day of the same term, after hearing, was refused and disallowed by the court. From the refusal of the court to make this order, the appeal is taken. The contention of the plaintiff is, that the verdict is conclusive of the fact that the ditch was a nuisance, and by reason thereof, it was error in the court to refuse to make an order directing the sheriff to abate it. The [605] adverse action of the court complained of was evidently based on the facts disclosed by the record, including, perhaps, its own knowledge of the evidence introduced at the trial, which showed that the nuisance had ceased, or that the remedy sought was inadequate to abate or prevent the continuance of the nuisance. Watson, J., said, in Ankeny v. Fairview Milling Company, that “ the hearing of the motion for such order is for the purpose of ascertaining whether the nuisance has ceased, and if not, whether the remedy by abatement would be adequate.” (10 Or. 400.) Now, on the record before us, it may be that the court was of the opinion that the nuisance had not ceased, and yet from the facts disclosed by the affidavits, and its own knowledge of the evidence introduced at the trial, became satisfied that the remedy sought was inadequate. In a word, that the remedy in equity would be more effective, where all the rights of the parties could be fully investigated, and the decree framed with greater care and more exact reference to the grievance complained of, or the nuisance to be abated. The court may have found, as asserted, that the nuisanpe had not ceased, nor the plaintiff waived her right to have it abated, and still consistently and lawfully refused to make an order for the warrant to abate it on the ground of its inadequacy. This would leave the door open to proceed in equity. It is not difficult to understand why, in such actions, the courts are not disposed to interfere in the summary way of abatement, when other remedies are not exhausted which can do more complete justice to the party injured. The verdict, then, cannot have such conclusive effect as to -make the issuance of the warrant, or order for the warrant, by the court, a matter of course. To allow this would destroy all discretion in the court, and render the hearing upon the motion a nugatory and absurd proceeding. [606] In Bemis v. Clark, 11 Pick. 454, it was held, under a. statute which provides that where a judgment shall be-rendered for the plaintiff in an action on the case for a nuisance, “ he may, on motion of the plaintiff, in addition to the common execution, issue a warrant to abate-the nuisance,” leaves it within the discretion of the court to grant or refuse such motion. Mr. Wood says: “It is proper to say, however, that courts hesitate to apply these statutory remedies, and do not generally encourage them; and parties, in a proper case, will find far more easy redress for their grievances from nuisances in a court of' equity than in a court of law. Courts of law will always exercise their 'discretion in these matters, and so far as-my researches have extended in that direction, I have found that it is only in extreme cases, even when the defendant has been convicted under an indictment therefor, that they will order the prostration or removal of a nuisance. They prefer to leave the parties to their redress before a tribunal of larger powers and more effective remedies, where all the rights and equities of' the parties can be fully investigated. And this course is not one of doubtful wisdom,' and has rapidly grown in favor within the last half-century.” (Wood on Nuisances, sec. 843.) Now the facts disclosed at the trial, or at the hearing of the motion, may show that the nuisance-has ceased, or is a continuing one, or that the remedy in such action is inadequate to effectively redress the grievance complained of, rendering a resort to equity necessary, as the case may be, and must be made in some way to appear upon the record before we can determine whether there has- been any error committed. It is unquestioned that all of the facts are not before us which formed the basis of the court’s action, and the record,, therefore, is too incomplete to furnish sufficient data607 upon which to adjudge error. The judgment must be affirmed. Waldo, C. J., concurred.