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Hawkins v. Barber

November 10, 1972

HAWKINS ET UX, APPELLANTS,
v.
BARBER, RESPONDENT



Appeal from Circuit Court, Marion County. Val D. Sloper, Judge.

George M. Joseph, Portland, argued the cause for appellants. With him on the briefs were James G. Breathouwer and Bemis, Breathouwer & Joseph, Portland.

Edward H. Warren, Portland, argued the cause for respondent. With him on the brief were Hershiser, Mitchell & Warren, Portland.

In Banc. O'Connell, C.J.

O'connell

This is an action to recover damages for the destruction of plaintiffs' farm buildings by a fire caused by defendant. Defendant demurred to the complaint on the ground that the statute of limitations barred the action. The trial court sustained the demurrer and entered judgment for defendant, whereupon plaintiffs appealed.

The demurrer was sustained on the theory that plaintiffs' action was for an injury to property caused by defendant's negligent conduct and was barred by the two-year limitation period prescribed in ORS 12.110(1).*fn1

Plaintiffs contend that their action was for trespass and therefore was governed by the six-year limitation period prescribed by ORS 12.080(3).*fn2

The pertinent parts of plaintiffs' complaint are as follows:

"I

"That at all times herein mentioned plaintiffs

were the owners of a certain Grade A dairy barn and attached calf shed * * *; that defendant was the owner and operator of a certain business known as Barber's Farm Service, in connection with which he conducted custom harvesting of hay, a ...


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