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CHAPTER II.

OF ACTIONS FOR NUISANCE, WASTE, AND TRESPASS ON REAL

PROPERTY.

§ 343. Nuisance-Damages for and Abatement Of.

Any person whose property is affected by a private nuisance, or whose personal enjoyment thereof is in like manner thereby affected, may maintain an action at law for damages therefor. If judgment be given for the plaintiff in such action, he may, in addition to the execution to enforce the same, on motion, have an order allowing a warrant to issue to the sheriff to abate such nuisance. Such motion must be made at the term at which judgment is given, and shall be allowed of course, unless it appear on the hearing that the nuisance has ceased, or that such remedy is inadequate to abate or prevent the continuance of the nuisance, in which latter case the plaintiff may proceed in equity to have the defendant enjoined. [L. 1862; D. Cd. § 330; H. C. § 333.]

NUISANCES.-The complaint in an action for damages for nuisance must allege facts showing that the complainant has suffered some special or extraordinary damage beyond what has been occasioned to the public generally, or it will be held insufficient generally: Roseburg v. Abraham, 8 Or. 509.

A person can not abate a nuisance unless he will suffer some damage,-even though nominal only, from its continuance: Turner v. Locy, 37 Or. 158, 61 Pac. 342.

The remedy furnished by this section is not exclusive. Where it is shown that this remedy is inadequate, equity has concurrent jurisdiction: Fleischner v. Citizens' Invest. Co. 25 Or. 129, 35 Pac. 174; Blagen v. Smith, 34 Or. 402, 56 Pac. 292; Kothenberthal v. Salem, 13 Or. 604, 11 Pac. 287.

When, in an action for a nuisance, a plaintiff recovers damages, he may have a warrant issued to have the nuisance abated: Marsh v. Trullinger, 6 Or. 356; but a verdict for plaintiff can not have such conclusive effect as to make the issuance of a warrant for the abatement thereof a matter of course. It may appear to the trial court from its own knowledge of the evidence in the case that the nuisance has ceased, or, if not, that the remedy by warrant is inadequate: Kothenberthal v. Salem, 13 Or. 604, 11 Pac. 287. 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; and, if it appears that the nuisance has not ceased, and the remedy by warrant is adequate, it becomes the imperative duty of the court to order the warrant to issue: Ankeny v. Fairview Milling Co. 10 Or. 396.

The court has no authority to direct the defendant to abate the nuisance established on the trial, or prescribe the mode in which it shall be done. Its jurisdiction extends, in a proper case, to making the order allowing the warrant to issue, only leaving to the officer the responsibility of executing it properly. It is the sheriff's duty to abate the nuisance with as little injury to the defendant as possible. For any unnecessary damage he would be liable to the injured party: Ankeny v. Fairview Milling Co. 10 Ör. 397.

If the record does not show on its face

the particular nuisance established by the verdict, it is competent for the court in which the trial was had, in making the order allowing a warrant to issue, to identify such nuisance by means of its own knowledge of the evidence introduced on the trial and applicable to the issues made in the pleadings: Ankeny v. Fairview Milling Co. 10 Or. 398.

Affidavits or other documents properly filed and considered by the lower court, on the hearing of the motion for an order allowing a warrant to issue for the abatement of a private nuisance, constitute part of the record of such proceedings without being made so by bill of exceptions. There is no technical record or "judgment roll" in such cases, the statute not having prescribed of what it shall consist; therefore it includes all papers properly filed in the court below: Ankeny v. Fairview Milling Co. 10 Or. 390.

EQUITY. An inaividual may have an injunction to prevent a public nuisance when such nuisance will be an extraordinary injury to his property, irreparable in damages, or irremediable at law, without a multiplicity of suits: Parrish v Stevens, 1 Or. 73.

A court of equity ought not, however, to interfere to prevent a public nuisance, or to abate one already existing. at the instance of a private citizen, unless he shows a special injury distinct from the public, justly apprehended or sustained: Luhrs v. Sturtevant, 10 Or. 170.

A court of equity will restrain the continuance of a nuisance when the complainant will sustain some irreparable injury or be compelled to resort to a multiplicity of actions for damages, but this general rule is subject to the limitation that the complainant must allege and prove that he has sustained some private direct damage other than that suffered by the public at large: Esson v. Wattier, 25 Or. 10, 34 Pac. 756; Luhrs v. Sturtevant, 10 Or. 170; Blagen v. Smith, 34 Or. 394, 56 Pac. 292.

To justify a court of equity in interfering by injunction to abate a nuisance, the nuisance must be an actual existing offense, and not merely apprehended: Esson V. Wattjer, 25 Or. 13, 34 Pac. 756. In Blager v. Smith, however, it is held that equity will restrain an existing or threatened public nuisance.

LANDLORD AND TENANT.-A landlord out of possession is not responsible for a nuisance originating after the execution of the lease, unless he is in some manner at fault for its creation or continuance, but if he renews the lease after the creation of the nuisance, he thereby becomes chargeable for its continuance: Fleischner v. Citizens' Invest. Co. 25 Or. 119, 35 Pac. 174. PARTICULAR CASES.-A bawdyhouse is a nuisance which will be abated at the instance of one whose business property is so situated as to subject the occupants thereof to disgraceful sights and sounds: Blagen v. Smith, 34 Or. 394, 56 Pac. 292.

An obstruction in a public road, where the defendant fails to show that he has sustained injury aside from the public, will not be abated: Luhrs v. Sturtevant, 10 Or. 170; nor, unless the right to the use of the alleged street or hig..way as such is admitted, or has been established at law, or is clear and easy of ascertainment: Walts v. Foster, 12 Or. 247, 7 Pac. 24; nor will a dam be enjoined unless it be shown that in consequence of the existence of the dam lands belonging to plaintiff will be submerged which would not otherwise be: Esson v. Wattier, 25 Or. 7, 34 Pac. 756; Turner v. Locy, 37 Or. 158, 61 Pac. 342.

§ 344. Warrant for Abatement of Nusiance-Effect of and Expense.

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If the order be made, the clerk shall thereafter, at any time within six months, when requested by the plaintiff, issue such warrant directed to the sheriff, requiring him forthwith to abate the nuisance at the expense of the defendant and return the warrant as soon thereafter as may be, with his proceedings indorsed thereon. The expense of abating the nuisance may be levied by the sheriff on the property of the defendant and in this respect the warrant is to be deemed an execution against property. [L. 1862; D. Cd. § 331; H. C. § 334.]

$ 345. When Defendant May have Stay.

At any time before the order is made, or the warrant issues, the defendant may, on motion to the court or judge thereof, have an order to stay the issue of such warrant, for such period as may be necessary, not exceeding six months, and to allow the defendant to abate the nuisance himself, upon his giving an undertaking to the plaintiff in a sufficient amount, with one or more sureties, to the satisfaction of the court or judge thereof, that he will abate it within the time and in the manner specified in such order. [L. 1862; D. Cd. § 332; H. C. § 335.]

The defendant may give a bond, as here provided, and abate the nuisance himself, but this will not always give such an adequate remedy as will prevent the intervention of a court of equity: Blagen v. Smith, 34 Or. 403, 56 Pac. 292.

§ 346. Justification of Sureties in Undertaking.

If the plaintiff is not notified of the time and place of the application for the order provided for in section 345, the sureties therein provided for shall justify as bail upon arrest, otherwise such justification may be omitted, unless the plaintiff require it. If such order be made and undertaking given, and the defendant fails to abate such nuisance within the time specified in said order, thereafter, at any time within six months, the warrant for the abatement of the nuisance may issue as if the same had not been stayed. [L. 1862; D. Cd. § 333; H. C. § 336.]

§ 347. Waste-Treble Damages, and Forfeiture and eviction For.

If a guardian, tenant in severalty or in common for life or for years, of real property, commit waste thereon, any person injured thereby may maintain an action at law for damages therefor against such guardian or

tenant, in which action there may be judgment for treble damages, forfeiture of the estate of the party committing or permitting the waste, and of eviction from the property; but judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion is determined in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done or suffered in malice. [L. 1862; D. Cd. § 334; H. C. § 337.]

A tenant in possession, under a lease containing a clause conferring upon him the privilege of purchasing the demised premises, having failed to exercise his said privilege within the time allowed, is liable for waste committed on the premises during his possession: Powell v. Dayton, S. & G. R. R. Co. 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. 251.

To constitute waste, the injury to real property must be of a permanent character, some unauthorized act of the tenant which does a lasting injury, or tends to destroy its identity: Davenport v. Magoon, 13 Or. 3, 4 Pac. 299, 57 Am. Rep. 1. The cutting of timber, when unauthorized, is waste: Sheridan v. McMullen, 12 Or. 153, 6 Pac. 497.

§ 348. Trespass for Cutting Trees — Treble Damages.

Whenever any person shall cut down, girdle, or otherwise injure, or carry off, any tree, timber, or shrub on the land of another person, or on the street or highway in front of any person's house, village, town, or city lot, or cultivated grounds, or on the commons or public grounds of any village, town, or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town, or city, against the person committing such trespasses, or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed therefor, as the case may be. [L. 1862; D. Cd. § 335, H. C. § 338.]

When the plaintiff seeks to recover treble damages under this section in an action, he should so state in his complaint and demand judgment therefor, so that the defendant may be apprised of the claim; and the facts stated must bring the claim within the statute. Defendant may then defend by specially pleading any of the causes mentioned in the next section: Neff v. Pennoyer, 3 Saw. 495.

If persons take wood from land of another, though under a mistaken impression that they are doing it under a license from the owner, they are liable for treble damages. The next section provides the only circumstances which may prevent a recovery of treble damages in a case where the provisions of this section would otherwise be applicable: Loewenberg v. Rosenthal, 18 Or. 186, 22 Pac. 601.

The measure of damages in a case for cutting and carrying away timber is not merely the value of the wood or timber cut, but such damages as accrued to the freehold by their destruction: Oregon & Cal. R. Co. v. Jackson, 21 Or. 362, 28 Pac. 74. It is the actual damages suffered which are allowed to be trebled when the trespass is willful and intentional: Oregon & Cal. R. Co. v. Jackson, 21 Or. 362, 28 Pac. 74.

The finding by a jury that defendants took and carried away timber unlawfully entitles the plaintiff under this section to treble damages, notwithstanding the jury also found that defendants had reasonable cause to believe and did believe that they had authority from plaintiffs to so take and carry away: Loewenberg v. Rosenthal, 18 Or. 178, 22 Pac. 601.

§ 349. Involuntary Trespass - Single Damages.

If, upon the trial of such action, it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodland for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages. [L. 1862; D. Cd. § 336; H. C. § 339.]

See preceding section, and note.

VOL. I.-15.

CHAPTER III.

OF ACTIONS ON OFFICIAL UNDERTAKINGS, AND FOR FINES AND FORFEITURES.

$ 350.

Official Bonds To Whom Deemed Security.

The official undertaking or other security of a public officer to the state, or to any county, city, or other municipal or public corporation of like character therein, shall be deemed a security to the state, or to such county, city, town, or other municipal or public corporation, as the case may be, and also, to all persons severally for the official delinquencies, against which it is intended to provide. [L. 1862; D. Cd. § 337; H. C. § 340.]

ACTION ON OFFICIAL UNDERTAKING.-Actions on official undertakings are not for the recovery of fines, penalties, or forfeitures within the meaning of subd. 4 of § 1097 allowing the district attorney ten pen cent of the sum recovered: In re Ison, 6 Or. 470.

LOST UNDERTAKING.-Where an official undertaking has been lost so that no copy can be obtained, a person damaged by delinquency of the officer may sue in equity

§ 351. Who May Sue Thereon.

to establish the bond and obtain leave to sue on it: Howe v. Taylor, 6 Or. 284.

DAMAGES, MEASURE OF.-The amount which a party injured by the mistake of a county clerk, in recording a mortgage on real property, subsequently conveyed by the mortgagor to a bona fide purchaser for value, is entitled to recover from the sureties on such undertaking, is the value of the mortgaged property at the time of such conveyance. Howe v. Taylor, 9 Or. 297.

When a public officer by official misconduct or neglect of duty shall forfeit his official undertaking or other security, or render his sureties therein liable upon such undertaking or other security, any person injured by such misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action at law thereon in his own name, against the officer and his sureties, to recover the amount to which he may by reason thereof be entitled. [L. 1862; D. Cd. § 338; H. C. § 341.]

ACTION ON OFFICIAL BOND.-A judgment creditor may sue on a sheriff's bond for injury resulting from his neglect or refusal to levy on property of the judgment debtor in pursuance of an execution in his hands: Habersham v. Sears, 11 Or. 431, 5 Pac. 208, 50 Am. Rep. 481. In such a case, the question whether the title to property alleged to be that of the judgment debtor was in him, and therefore subject to levy, is one for the jury under proper instructions: Moore v. Floyd, 4 Or. 101.

Where the complaint shows that the defendant received money as treasurer, and failed to deliver the same to his successor in office, it is not necessary to allege that

the money belonged to the county whose officer he was: Crook County v. Bushnell, 15 Or. 169, 13 Pac. 886.

Actions brought on official undertakings are not for the recovery of fines, penalties. or forfeitures, within the meaning of subd. 4 of § 1097, allowing district attorneys ten per cent of the sum recovered: In re Ison, 6 Or. 470.

PARTIES.-A county is a proper party plaintiff in an action under an official bond of a tax collector, to recover for default in paying over taxes levied and collected for state, county, and school purposes: Hume v. Kelly, 28 Or. 404, 43 Pac. 380.

§ 352. Leave to Begin Action, Upon What Showing.

Before an action can be commenced by a plaintiff other than the state, or the municipal or public corporation named in the undertaking or other security, leave shall be obtained of the court or judge thereof where the action is triable. Such leave shall be granted upon the production of a certified copy of the undertaking or other security, and an affidavit of the plaintiff

or some person on his behalf showing the delinquency; but if the matters set forth in the affidavit be such that, if true, the party applying would clearly not be entitled to recover in the action, the leave shall not be granted. If it does not appear from the complaint that the leave herein provided for has been granted, the defendant on motion shall be entitled to judgment of nonsuit; if it does, the defendant may controvert the allegation, and if the issue be found in his favor, judgment shall be given accordingly. [L. 1862; D. Cd. § 339 ; H. C. § 342.]

When the action is brought by one other than the obligee named in the undertaking, leave of the court or judge thereof where the action is triable to commence the action must be obtained, and the complaint must show this fact: Crook County v. Bushnell, 15 Or. 169, 13 Pac. 886; Hume v. Kelly, 28 Or. 409, 43 Pac. 380.

It is doubtful whether leave can be

granted upon any other showing than a certified copy of the undertaking as here provided: Howe v. Taylor, 6 Or. 290.

The objection that leave to sue has not been granted must be raised by motion for nonsuit as here provided, otherwise it will not be considered, when raised for the first time on appeal: Multnomah County v. Kelly, 37 Or. 4, 60 Pac. 202.

§ 353. Judgment no Bar to Action for Further Delinquency.

A judgment in favor of a party for one delinquency shall not preclude the same or another party from maintaining another action on the same undertaking, or other security for another delinquency. [L. 1862; D. Cd. § 340; H. C. § 343.]

§ 354. Amount of Judgment.

In an action upon an official undertaking or other security, if judgments have already been recovered against the surety therein, other than by confession, equal in the aggregate to the penalty or any part thereof of such undertaking or other security, and if such recovery be established on the trial, judgment shall not be given against such surety for an amount exceeding such penalty, or such portion thereof, as is not already recovered against him. [L. 1862; D. Cd. § 341; H. C. § 344.]

§ 355. Fines and Forfeitures, Who May Prosecute Actions For.

Fines and forfeitures may be recovered by an action at law in the name of the officer or person to whom they are by law given, or in the name of the officer or person who by law is authorized to prosecute for them. [L. 1862 ; D. Cd. § 342 ; H. C. § 345.]

BAIL BOND.-Under this section, the district attorney sues as plaintiff in his own name: Hannah v. Wells, 4 Or. 249; and these are the cases in which the district attorney is authorized to receive ten per cent of the amount recovered as his fee: In re Ison, 6 Or. 471.

§ 356. Amount of Recovery.

A proceeding to recover a fine or forfeiture must be by action at law, and can not be by the district attorney intervening in a suit between other parties: Holladay v. Holladay, 13 Or. 530, 11 Pac. 260, 12 Pac. 821.

When an action shall be commenced for a penalty, which by law is not to exceed a certain amount, the action may be commenced for that amount, and if judgment be given for the plaintiff, it may be for such amount or less, in the discretion of the court, in proportion to the offense. [L. 1862; D. Cd. § 343; H. C. § 346.]

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