Chapter § 60.6 NATURE AND EXTENT; BASES FOR LIABILITY

• Jurisdiction: Oregon

§ 60.6 NATURE AND EXTENT; BASES FOR LIABILITY

§ 60.6-1 General Principles—Encroachments

The law of encroachments typically involves trespass, nuisance, negligence, or abnormally dangerous activity. A general rule as applied specifically to physical encroachments is found in McKee v. Fields, 187 Or 323, 326, 210 P2d 115 (1949) (retaining wall encroached by 1/8 inch to less than five inches), in which the court stated that "[n]o person may erect buildings or other structures on his own land so that any part thereof, however small, extends beyond his boundaries and encroaches upon adjoining premises." See Sutherlin Sch. Dist. No. 130 v. Herrera, 120 Or App 86, 90, 851 P2d 1171 (1993).

§ 60.6-2 General Principles—Invasions (Reasonableness of Use)

A person is entitled only to the reasonable use of his or her property. That is, a person may use the property in any way as long as that use does not actionably injure others. The reasonableness of a use has historically been largely defined by the common law, but more recently, in many cases, by statutes, regulations, and ordinances.

A property owner may put property to any reasonable and lawful use as long as (1) that use does not deprive the adjoining owner of any rights of enjoyment of the property that are recognized and protected by law, and (2) that use does not amount to a nuisance in law. The law does not forbid any and all uses of property that may cause loss, damage, or inconvenience to others. Although the rightful use of a person's land may sometimes diminish the value of an adjoining estate or prevent its being used with the comfort that might have otherwise been anticipated, this will not give rise to an action in damages as long as the use is reasonable. The test of reasonable use in Oregon is whether "'the act or use [is] a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also, public policy.'" Brown v. Gessler, 191 Or 503, 517, 230 P2d 541 (1951) (quoting Adjoining Landowners, 1 Am Jur 506 § 3).

When the use in question results in an invasion of a landowner's interest, the use is unreasonable unless the utility of the actor's conduct outweighs the gravity of the harm. Gronn v. Rogers Const., Inc., 221 Or 226, 233, 350 P2d 1086 (1960). The principles of negligence ordinarily enter into the determination of the question of reasonable use. Adjoining Landowners, 1 Am Jur 2d § 12 (2005) (supplemented periodically). The factual inquiry of reasonable use is what a reasonably prudent person would have done under the circumstances. Adjoining Landowners, 1 Am Jur 2d § 3. "An ordinarily lawful use of property becomes unreasonable . . . [if] the necessary effect of the use is to physically invade the property of another owner. A use is unreasonable . . . if it constitutes an appropriation of [an interest in] the adjoining land. Adjoining Landowners, 1 Am Jur 2d § 5 (footnote omitted). "The ultimate question in each case is whether the challenged use is reasonable in view of all of the surrounding circumstances." Adjoining Landowners, 1 Am Jur 2d § 3.

§ 60.6-3 Theories of Liability

§ 60.6-3(a) Generally; Multiple Theories for Single Invasion

A landowner's liability to an adjoining landowner can be based on various theories. In some instances, the nature of the use of the land or the nature of the invasion determines the theory of liability, but different courts have based liability for the same kind of invasion on different theories. It is not important which theory of liability is used if the theory is adapted to the relief sought. Thus, the maintenance of an encroachment on the land may be a continuing trespass or a nuisance. See First M.E. Church of Pasco v. Barr, 123 Wash 425, 212 P 546, 547...