Appeal from Circuit Court, Clackamas County. Howard J. Blanding, Judge.
Fred A. Granata, Portland, argued the cause and filed briefs for appellant.
William T. Powers, of Powers, McKenna & Powers, Portland, argued the cause and filed a brief for respondents.
In Banc. McAllister, J. Denecke, J., specially concurring. O'Connell, C.J., joins in this specially concurring opinion.
This is an action for trespass allegedly committed by defendant during the construction of a roadway on an easement over plaintiffs' property. The jury awarded plaintiffs $4,000 compensatory damages and $1,000 punitive damages. Defendant appeals. We reverse only as to the punitive damages.
The easement starts on the west at a public road and runs easterly through lands owned by persons not parties to this action, thence for about 1,450 feet through plaintiffs' land and ends on the east at the boundary of defendant's property. The easement was surveyed in 1959 and the survey filed with the county surveyor. The easement is described in defendant's deed as being 25 feet on either side of a described center line. Plaintiffs purchased their property on a contract which, after a description of the property, recited:
"TOGETHER with and SUBJECT to an easement
to be used in common with others over the 50 foot roadway as surveyed in July of 1959, file No. 3059, Clackamas County Surveyors Office, in the County of Clackamas and State of Oregon."
In 1969 defendant decided to subdivide his land and learned that in order to do so he would have to provide a better road than the one then in use which, for the most part, followed the surveyed easement referred to above. Defendant discussed with his neighbors the advisability of constructing a new road by using the old road in some areas, the easement in some areas, and a new route in some areas. He was unable to secure their consent however and decided to build a new road within the easement using some parts of the existing road which lay within the surveyed easement.
The complaint alleged that the trespass was intentional and malicious and damaged plaintiffs' property by removing lateral support, by constructing slopes that encroached on plaintiffs' land, by depositing fill and debris on plaintiffs' land, by causing surface water to accumulate on plaintiffs' property, by removing a number of trees from plaintiffs' land and by placing an unauthorized fence on plaintiffs' property. It was alleged that as a result of the trespasses the market value of plaintiffs' land was decreased by $7,675. Plaintiffs demanded that amount in compensatory damages and $5,000 in punitive damages.
The defendant first attempts to challenge the sufficiency of the evidence to support the verdict for compensatory damages by assigning as error the denial of his motion for judgment n.o.v. or for a new ...