Chase v. Henderson

509 P.2d 1188 (1973)

Milton A. CHASE and Belva Joy Chase, Respondents, v. C.H. HENDERSON, Also Known As Herb Henderson, Also Known As Charles H. Henderson, Appellant.

Supreme Court of Oregon.

Argued and Submitted February 7, 1973.

Decided May 17, 1973.

Asa L. Lewelling, Salem, argued the cause and filed a brief for appellant.

Robert D. Woods, Eugene, argued the cause for respondents. With him on the brief were Riddlesbarger, Pederson, Young & Horn, Eugene.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOWELL and BRYSON, JJ.

DENECKE, Justice.

Plaintiffs recovered a judgment for damages to their annual pole bean crop allegedly caused by the drift of a chemical spray which defendant applied from a helicopter to a nearby pasture. Defendant appeals.

The case was submitted to the jury upon the theory of unintentional, non-negligent trespass. In Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961), we specifically held that the spraying of chemicals was an ultrahazardous activity and the sprayer was liable if the chemicals went on another's land and caused damage regardless of the absence of intention or negligence. Defendant's attempts to distinguish Loe v. Lenhardt, supra, 227 Or. 242, 362 P.2d 312, are unsuccessful.

Being of the opinion that ORS 105.815 applied, the trial court doubled the actual damages found by the jury. Defendant contends that statute is not applicable.

*1189 After the trial in this case we decided Meyer v. Harvey Aluminum, Inc., Or., 501 P.2d 795, 799-800 (1972). We held ORS 105.810, the companion statute to ORS 105.815, did not permit the trebling of damages. In that case the plaintiffs' fruit crop and trees were allegedly damaged by emissions from the defendant's aluminum plant. The same considerations which caused us to conclude that treble damages were not allowable in such a case cause us to conclude that double damages are not allowable in this case.

Modified with instructions to enter judgment in the amount awarded by the jury.