East St. Johns Shingle Co. v. City of Portland
195 Or. 505, 246 P.2d 554, 1952 Ore. LEXIS 223 (1952)
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Rule of Law:
A private party operating a business for profit is estopped from recovering damages from a municipality for a public nuisance when that party acquired property with knowledge of the pre-existing nuisance, which arose from an authorized governmental function, and any subsequent increase in the nuisance was reasonably foreseeable.
Facts:
- For many years prior to 1928, the City of Portland discharged raw sewage into the Columbia slough, a navigable body of water.
- The area around the slough was also used by other industries, such as slaughterhouses, which contributed to its pollution.
- In 1934, Gertrude Gotcher purchased property on the slough for the East St. Johns Shingle Company, which she operated with her husband who had worked on the slough since 1930.
- In 1936, Alfred Schmidt, who had previously worked for the Gotchers on the slough, acquired property on the slough to operate the Portland Shingle Company.
- Both companies used the slough to float logs to their mills, a process during which the logs became coated with sewage.
- At the time Gotcher and Schmidt acquired their respective properties, they were aware of the existing pollution in the slough from the city's sewers and other industries.
Procedural Posture:
- Two separate actions for damages were filed by the plaintiffs against the City of Portland in a state trial court.
- The cases were consolidated and tried together before a jury.
- The jury returned a verdict in favor of the defendant, the City of Portland.
- The trial court entered a judgment for the city based on the jury's verdict.
- The plaintiffs (appellants) appealed the judgment to the Supreme Court of Oregon.
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Issue:
Is a private party estopped from recovering damages from a municipality for a public nuisance when that party acquired property with knowledge of the pre-existing nuisance created by an authorized governmental function?
Opinions:
Majority - Warner, J.
Yes. A private party is estopped from recovering damages from a municipality for a public nuisance where the party knowingly acquired property in the vicinity of the pre-existing nuisance. The court departs from the general modern trend of rejecting the 'coming to the nuisance' doctrine, creating an exception for cases involving a municipality performing an authorized governmental function. The court reasoned that public policy protects municipalities from lawsuits by commercial enterprises that voluntarily situate themselves in an area affected by a known, pre-existing public nuisance. The plaintiffs, as experienced business operators, knew or should have known of the slough's polluted condition and reasonably foreseen that the city's sewage output would increase with population growth. Allowing such a claim would encourage speculative litigation and could potentially bankrupt municipalities performing essential public services. Therefore, the plaintiffs acquired their property 'cum onere' (with the burden) and are precluded from seeking damages.
Analysis:
This decision establishes a significant exception in Oregon law to the general judicial hostility towards the 'coming to the nuisance' doctrine. By carving out a specific rule for municipalities engaged in essential public functions, the court prioritizes public necessity and fiscal stability over the property interests of commercial actors who knowingly assume a risk. The ruling creates a distinction between residential plaintiffs seeking to protect their homes and commercial plaintiffs operating for profit, suggesting the latter are held to a higher standard of diligence. This precedent will likely shield government entities from similar damage claims by businesses that locate near pre-existing public works, forcing courts in future cases to carefully weigh the plaintiff's status (commercial vs. residential) and the nature of the defendant (public vs. private).
