Chapter § 60.7 PARTICULAR MATTERS
| Jurisdiction | Oregon |
§ 60.7-1 Walls and Buildings
Walls and buildings may be erected to create a physical encroachment on the adjoining land, in which case neither negligence, mistake, nor danger is the issue. But a wall or building may be erected entirely within its proper bounds and pose another type of threat to adjoining premises.
Subject to reasonable building and zoning ordinances, a landowner may make a reasonable and proper use of property in erecting buildings and other structures. The landowner must exercise reasonable care to prevent the structures from becoming dangerous to adjoining landowners. The degree of care required is commensurate with the danger involved. Brown v. Gessler, 191 Or 503, 517, 230 P2d 541 (1951). Reasonable care involves the duty to keep a building in a condition that will not cause injury to others. If an owner fails to make necessary repairs and, as a result, the building collapses, the owner is liable for damage to adjoining property.
A cause of action for negligently constructing and maintaining a structure so that it injures adjoining property arises at the time the injury occurs, not at the time of the negligent act or omission. Thus, when a fire destroys the inner portion of a building and leaves the walls, and the owner permits the walls to remain standing beyond a reasonable time and they thereafter collapse, the owner is liable to the adjoining owner for the resulting damage. Teter v. Olympia Lodge No. 1, I.O.O.F., 195 Wash 185, 189, 80 P2d 547 (1938). However, the owner must have had reasonable time in which to make the necessary repairs or take the necessary precautions.
The owner of a building or wall sometimes has the duty to protect it from collapsing when the adjoining owner (who must exercise reasonable care and skill in making the excavation) excavates on his or her property, unless an agreement, a statute, or a special circumstance places the duty on the excavating owner. See Weiss v. Kohlhagen, 58 Or 144, 150-51, 113 P 46 (1911), overruled on other grounds by Zahumensky v. Fandrich, 200 Or 588, 590-91, 267 P2d 664 (1954).
The duty a person owes to adjoining landowners extends not only to maintaining a wall or building but also to selecting materials used in and the manner of constructing the wall or building. In Hummell v. Seventh St. Terrace Co., 20 Or 401, 406-07, 26 P 277 (1891), the defendant was held liable for injuries caused by a terrace wall collapsing onto the plaintiff's adjoining property, despite the fact that the collapse was caused by an unusual and excessive rainfall.
No person may erect buildings or other structures on his or her land such that any part extends beyond the boundaries and encroaches on adjoining premises. McKee v. Fields, 187 Or 323, 326, 210 P2d 115 (1949) (encroaching retaining wall). However, when the hardship in removal is deemed sufficient, the defendant, on payment of damages, may acquire either a fee or an easement in the land on which the structure encroaches. Zerr v. Heceta Lodge No. 111, Indep. Order of Odd Fellows, 269 Or 174, 187, 523 P2d 1018 (1974); see Seid v. Ross, 120 Or App 564, 572-73, 853 P2d 308, rev den, 317 Or 486 (1993). In the Zerr case, the court held that a landowner was responsible for removing encroaching eves and for jacking up his building to prevent it from leaning against a neighboring building. Zerr, 269 Or at 184. The court refused to make the defendants move or remove the entire building to remedy an additional nine-inch encroachment. Instead, the court gave the defendant an easement in the encroached-on land and awarded the plaintiffs nominal damages.
§ 60.7-2 Trees and Spreading Vegetation
Neither adjoining owner is at liberty to cut down or remove trees on a boundary line without the consent of the other; however, either can remove...
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