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Nicolai v. Day

February 1, 1973

NICOLAI, APPELLANT,
v.
DAY ET UX, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge.

George M. Joseph, Portland, argued the cause for appellant. With him on the brief were Bemis, Breathouwer & Joseph, Portland.

Carrell F. Bradley, Hillsboro, argued the cause for respondents. With him on the brief were Schwenn, Bradley, Batchelor & Bailey, Hillsboro.

In Banc. O'Connell, C.J. McAllister, J., concurs in the result.

O'connell

Plaintiff brought this action to recover damages when a part of defendants' land slid down upon plaintiff's land and caused injury to structures and other improvements thereon. The jury returned a verdict for defendants Day and plaintiff appeals.

Plaintiff's complaint alleged as follows:

"IV

"During January and February of 1970, large quantities of fill dirt, mud and debris piled on defendants' property, slid from the property of the defendants, and each of them, onto the property of plaintiff.

"V

"As a proximate result of sliding of defendants' land upon the plaintiff's land, plaintiff's land was depreciated in the sum of $40,000.00.

"VI

"Defendants, and each of them, knowing their respective lands lay in a precarious position and would slide onto plaintiff's land, and that plaintiff's property would be damaged, failed to take any precautions to prevent such slide."

The "fill" referred to in the complaint was made by the Days' predecessor in title. The fill created a slope varying from 45 degrees to 60 degrees. In 1963, contiguous land owned by Fisher to the east of the Day premises began to slide after Fisher built a house on his land. Fisher's house was built with massive and deep concrete basement walls which created a dam effect against the flow of surface and subsurface ...


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