Lunda v. Mattews

613 P.2d 63 (1980)

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Nature of the Case

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Facts

P purchased their property in a residential/recreational area of LaPine in 1959. In 1970, they built a home there and began using the property as their residence. P moved to LaPine for the clean air. In 1976, D constructed the LaPine Readi-Mix Plant about 180 feet north of P's house in an area zoned M-2 Industrial. On the north side of D's plant lies a pole mill where bark is peeled from log poles. After a silo was constructed D began to receive large shipments of dry cement rather than the bagged cement. The dry cement is blown into the silo from the trailer. Clouds of cement dust permeate the air. This dust is so thick that one cannot see the outline of trees in the area. The unloading process is also very noisy. It takes about two hours to unload a trailer, and most deliveries were made at night. Various trucks all pass directly by P's residence, raising dust which blows into P's home. P sued in trespass claiming that the cement dust, road dust, noise pollution and diesel fumes emanating from D's readi-mix plant interfered with the exclusive possession of their land. P claimed that D's use of their property unreasonably interfered with the use and enjoyment of P's property and created a private nuisance. P sought damages for the diminished land value, for inconvenience, annoyance, physical discomfort, and mental distress. P also sought injunctive relief. The jury awarded $5,000 damages, and the court enjoined Ds to water the roadway and plant area traversed by motor vehicles and from operating the plant or receiving deliveries between the hours of 10:00 p.m. and 6:00 a.m. and all day on Sunday. D appealed. There was no evidence of either intentional or negligent trespass and that their motion for directed verdict on trespass and the nuisance count should have been granted.