Lloyd Corporation v. Whiffen

773 P.2d 1294, 307 Or. 674

• Court: Oregon Supreme Court
• Decided: May 9, 1989
• Docket: CC A8512-08127; CA A38839; SC S35170
• Status: Published

Opinions

JONES, J.

The issue is whether the owner of a privately owned shopping center open to the public for commercial purposes may obtain a declaration of rights and an injunction against persons entering the shopping center to obtain petition signatures; or whether the defendant-solicitors have a right to solicit petition signatures in the shopping mall without plaintiffs permission.

The circuit court ordered that “defendants are hereby restrained and enjoined from entering upon plaintiffs private property to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without plaintiffs permission or consent.” The Court of Appeals reversed, holding that the order violated defendants’ rights of expression under Article I, section 8, of the Oregon Constitution, and that defendants could exercise their free expression rights in the shopping center subject to reasonable time, place, and manner regulations. Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988). We affirm the decision of the Court of Appeals, but on different grounds.

FACTS

Most of the facts are undisputed.¹ Lloyd Center (Center) is a retail shopping center located in Portland. Plaintiff is the owner of fee title to the land the Center occupies. Five public streets cross the Center and at least six other public streets run partly into and around the Center. In total, there are more than 66 blocks of publicly owned sidewalks in the Center. There is also an adjacent public park. The privately owned areas of the Center contain stores, professional and business offices, covered walkways, and open and covered areas for automobile parking. At least nine stores open directly onto or within a few feet of public streets. There are public bus stops on public streets adjacent to the public sidewalks in the Center. All entrances to and exits from the Center cross public sidewalks.

The privately owned mall and walkways are designed, decorated, and managed to promote retail business, to please plaintiffs tenants and their customers, clients, and patients, and to encourage prospective customers to come to the Center where they may view and buy merchandise or partake of services. Gardens, flower beds, statuary, murals, various other works of art, benches, elevators and escalators, stairways and bridges, and directories and information booths adorn the private mall and walkways. Recorded music is broadcast in the ice rink and throughout the Center as part of the desired atmosphere. Plaintiff and plaintiffs tenants pay the entire cost of maintaining the privately owned common areas in the Center, which exceeds $1 million per year. All this is intended to create a pleasant environment conducive to purchasing merchandise or services.

Since the inception of its business in 1960, plaintiff without discrimination has attempted to prohibit solicitation or distribution of political leaflets or petitioning in the privately owned mall and walkways of the Center. Neither tenants of the Center nor nontenants are permitted to engage in any such activity. At each of 25 entrances to the private areas, plaintiff has embedded signs in the walkways stating: “NOTICE — Areas in the Lloyd Center used by the public are not public ways but are for the use of Lloyd Center tenants and the public transacting business with them. Permission to use said areas may be revoked at any time. Lloyd Corporation, Ltd.”

The record supports plaintiffs contention that it attempts to limit access of persons whose purpose is not to shop or “do business with” plaintiff or its tenants. It is obvious, however, that plaintiff would not exclude a person who comes only to meet an employee or a shopper at the Center or persons who simply walk through the mall for exercise. Plaintiffs signs tell the public that the open areas of the Center (1) are not public ways, (2) are for the use of the Center’s tenants and the public transacting business with them, and (3) that plaintiff may revoke permission to use the areas at any time. They do not purport to deny entry to casual visitors. They do not imply that someone crossing from one street to another through the Center’s public area is a trespasser. But one thing is clear: plaintiff makes no open-ended invitation to the public to use the Center as a forum to debate public issues.

In December 1985, defendants entered the Center to gather signatures on three initiative petitions. The parties agreed that “[e]mployees of the plaintiff have requested defendants and others who seek to gather initiative petition signatures to cease their activities on the privately owned portions of Lloyd Center and have asked those persons to go to public sidewalks or other public areas to obtain signatures.” After this request, defendants continued their activity and declared that they would continue to do so unless arrested or enjoined. Accordingly, plaintiff commenced this litigation for an injunction and for a declaratory judgment.

ANALYSIS

I.

From the beginning, the parties have treated this as a constitutional case. Plaintiff claimed that a refusal to enjoin defendants’ activity would constitute a taking of its property. Defendants counterclaimed for a declaration that they have a “right” under the Oregon Constitution to gather initiative petition signatures in the Center.² Judicial opinions elsewhere take up the constitutional debate, displaying deep divisions about the correct analysis.³ We will not join in that debate, however, without first examining the parties’ rights on a sub-constitutional level. Our practice is to refrain from constitutional holdings unless ordinary legal principles cannot resolve the dispute. State v. Edgmand, 306 Or 535, 538-39, 761 P2d 505 (1988); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984).⁴

A court applying a common-law rule or fashioning an equitable order must observe constitutional principles as much as a legislative or administrative body. See Hall v. The May Dept. Stores, 292 Or 131, 145-46, 637 P2d 126 (1981); Wheeler v. Green, 286 Or 99, 117-19, 593 P2d 777 (1979); Crouch v. Central Labor Council, 134 Or 612, 622, 293 P 729 (1930). Although court involvement may trigger constitutional analysis, it does not prove a constitutional violation. Thus, in deciding this case we will discuss constitutional provisions and interpretations without necessarily deciding any constitutional right or violation. Whether a judicial decision of a private claim invades constitutional rights depends on whether the remedy fashioned by the court invades constitutional rights. The same judicial remedy — for instance, an injunction — may be permissible in one case but not in another. In this case, we conclude on a subconstitutional level that plaintiff is not entitled to the broad injunction it sought and received.

II.

Plaintiff seeks an injunction against defendants for unreasonably interfering with plaintiffs use of its property. Plaintiff has established that defendants are on plaintiffs property without permission; indeed, defendants are transgressing a direct prohibition. Plaintiffs success in making this demonstration does not, however, automatically prove its entitlement to the injunction granted by the trial court.

In a trespass case not involving the public interest, once a plaintiff establishes that his protected interest in exclusive possession of land will be repeatedly invaded, an injunction ordinarily issues against the continuing trespass to avoid the multiplicity of law suits otherwise necessary to vindicate the plaintiffs rights in damages.⁵ But an injunction remains discretionary and subject to equitable considerations; it is not available as a matter of right.

This court has recognized that equitable remedies against invasions of real property do not follow inexorably when a landowner seeks to deny entry. In Atkinson v. Bernard, Inc., 223 Or 624, 355 P2d 229 (1960), the trial court granted landowners an injunction against noisy low-level flights across their land from a small airport. The trial court applied the “privileged trespass” rule of the Restatement of Torts § 460 (1934), which this court had cited in another context: “Air travel over a plaintiffs land is still recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege.” Amphitheaters, Inc. v. Portland Meadows, 184 Or 336, 344, 198 P2d 847 (1948). In Atkinson, this court recharacterized what previously had been “trespass” as “nuisance” and then applied equitable balancing to fashion the injunctive decree:

“We hold that whenever the aid of equity is sought to enjoin all or part of the operations of a private airport, including flights over the land of the plaintiff, the suit is for the abatement of a nuisance, and the law of nuisance rather than that of trespass applies.” Atkinson, 223 Or at 633.

Similarly, in York v. Stallings, 217 Or 13, 341 P2d 529 (1959), the court characterized as a “nuisance” the invasion of landowners’ property by a particulate fallout and noise from a sawmill. The court wrote: “Turning to the applicable rules of law, we first take note of the proposition that an injunction is an extraordinary remedy and will be granted only upon clear and convincing proof.” 217 Or at 19. Although the plaintiffs were entitled to some relief,

“it does not follow that an injunction should issue as a matter of course. The court may refuse an injunction in certain cases where the hardship caused to the defendant by the injunction would greatly outweigh the benefit resulting to the plaintiff. The injunction does not issue as a matter of absolute or unqualified right but is subject to the sound discretion of the court. * * *” 217 Or at 22.

The court quoted and approved the rule stated in Restatement of Torts § 941:

“ ‘The relative hardship likely to result to the defendant if the injunction is granted and to the plaintiff if it is denied, is one of the factors to be considered in determining the appropriateness of an injunction against tort.’ ” 217 Or at 23.

The opinion continued:

“This court heretofore has accepted the balancing doctrine in cases involving the public inconvenience. In Fraser v. City of Portland, 81 Or 92, 98, 158 P 514 [1916], this court stated:

“ ‘* * * sometimes a court of equity will decline to raise its restraining arm and refuse to issue an injunction * * * even though an admitted legal right has been violated, when it appears that * * * the issuance of an injunction would cause serious public inconvenience or loss without a correspondingly great advantage to the complainant.’ ” 217 Or at 24.

The York court limited the decree to “unreasonable interference” with the plaintiffs’ enjoyment of their property and remanded the case to the circuit court to take further evidence on the fallout issue.

When damages only were at stake, however, the court has allowed an “action of trespass” for what it earlier characterized as “nuisance” in deciding whether a landowner was entitled as a matter of right to enjoin the invading conduct. In Martin v. Reynolds Metals Co., 221 Or 86, 342 P2d 790 (1959), cert den 362 US 918 (1960), landowners complained of fallout from an aluminum reduction plant, much like the fallout from the sawmill in York v. Stallings, supra. Unlike the Yorks, however, the Martins sought damages, and the measure of damages would differ with the characterization.

The Martin court distinguished the two theories by whether the defendant’s acts invaded the plaintiffs’ interest in “the exclusive possession of land” (trespass), or their interest in “the use and enjoyment” of the land (nuisance), noting that the same conduct may invade both interests. 221 Or at 90. The court affirmed a judgment of damages for trespass. To do so, it had to distinguish Amphitheaters, Inc. v. Portland Meadows, supra, which had characterized light, smoke, noxious odors and the like as “nontrespassory invasions” and had sustained a directed verdict for defendants. The Martin court wrote:

“The Amphitheaters case can be explained in terms of this latter point of view, i.e., that the glare of defendant’s lights could be regarded as an intrusion within the law of trespass, but that the plaintiff had no right to treat the intrusion as actionable in view of the nature of plaintiffs use and the manner in which the defendant interfered with it. Had the defendant purposely, and not as an incidence of his own legitimate use, directed the rays of light against the plaintiffs screen the court might well have taken the position that the plaintiff could have recovered in a trespass action. These illustrations demonstrate that the tort of trespass involves a weighing process, similar to that involved in the law of nuisance, although to a more limited extent than in nuisance and for a different purpose, i.e., in the one case to define the possessor’s interest in exclusive possession, and in the other to define the possessor’s interest in use and enjoyment.” 221 Or at 96.

In short, the cases show that invasions of another’s real property are not always enjoined, even when the invasion qualifies as “trespass” for purposes of liability for damages. The cases can be distinguished insofar as the harmful invasion takes a form other than the entry of human beings on the owner’s land, but that is a distinction without a real difference. The unwanted light shining upon the screen of an outdoor movie theater in Amphitheaters, Inc. or the noxious fallout poisoning the cattle in Martin might well cause more harm to the landowners’ use and enjoyment of their property than the presence of unwanted persons among the public visiting a shopping center.

In the case before us, we are not dealing with a private nuisance or a simple repeating trespass. Instead, we face a situation in which a very real public interest is at stake. In such a case, the court should not issue an injunction if it would cause serious injury to the public interest unless without the equitable relief the owner or his equivalent would experience a more serious injury.

Here, the public interest is well defined. Defendants seek to collect signatures to initiate public lawmaking. Or Const, Art IV, § 1. Oregon Revised Statutes chapter 250 is wholly devoted to the process of filing petitions and obtaining signatures. It does not create a right to go wherever one likes in pursuit of signatures, and often there will be no plausible showing of necessity to do so on someone else’s property. This court recently held, however, that laws may only regulate, not entirely bar, entry even on residential property to reach people on matters of social or community interest. City of Hillsboro v. Purcell, 306 Or 547, 555-56 & nn 8-9, 761 P2d 510 (1988). One can hardly deny that the statutes recognize a right to sign petitions or to seek the signatures of others and a strong public interest in facilitating that process.

Plaintiff does not oppose the public policy of gathering petition signatures. It simply does not want the activity carried out on its private property, usurping space for which plaintiff paid and for which it charges its tenants. Plaintiff recognizes that the court must balance benefits and hardships in this equitable proceeding, alleging that “greater injury will be inflicted upon plaintiff by the denial of relief than will be inflicted upon defendants by granting relief.”

Before addressing plaintiffs allegations, we evaluate the injunction’s effect on the public interest. The signature-gathering process for political petitions is a form of political speech and no one contests that free speech is one of our society’s most precious rights. As Justice Brandéis said in his concurring opinion in Whitney v. California, 274 US 357, 375, 47 S Ct 641, 71 L Ed 1095 (1927), “[t]hose who won ourj independence believed that * * * the greatest menace to freedom is an inert people; that public discussion is a political I duty; and that this should be a fundamental principle of the American government.” We might add that this is a funda-1 mental principle of the Oregon government as well. No doubt j defendants’ activity involves a very important public interest. But is that public interest seriously injured if defendants’ activity is completely blocked at the Center? We believe that it is.

Plaintiff claims that defendants have full access to traditional public forums, such as the public park, sidewalks, and streets adjoining plaintiffs private property. But the public does not gather in the public park or use the outside sidewalks in great number. The process of gathering signatures is substantially impaired — almost doubled in time — if conducted on the public walkways or in parks instead of in the mall and on its walkways. Shopping malls have become part of American life. Large numbers of the public gather there. Although plaintiff tries to cloak a public mall as a private place, it is the antithesis of a private place.

We conclude that if defendants are denied access to plaintiffs private property, the public interest served by defendants’ activity will sustain serious injury. But this conclusion alone does not decide the issue before us. We must address whether plaintiff has proven that defendants’ activities will seriously injure the commercial enterprise at the Center.

Plaintiffs complaint overstates its right to equitable relief. Taking plaintiffs position literally, it could open the malls, walkways, and other common areas of the Center generally to the stream of visitors on which a shopping mall depends but forbid some or all of these visitors from discussing politics while window shopping or sharing a meal; it could allow solicitors to circulate petitions for measures favorable to its business interests but not for measures that it opposes; it could (if there were no law to the contrary) exclude members of some races, religions, or ethnic groups collectively or individually without explanation if that were deemed to enhance the atmosphere motivating its desired customers; and it could demand the aid of equity to enforce the exclusions, all in the name of “trespass.” Such an argument evokes memories of claims made a generation ago by branch managers of national corporations in segregated communities before the passage of open accommodation laws.⁶ See, e.g., Bell v. Maryland, 378 US 226, 242, 84 S Ct 1814, 12 L Ed 2d 822 (1964) (Douglas, J., concurring); 2 Emerson, Haber & Dorsen, Political and Civil Rights in the United States 2114-15 (3d ed 1967); Paulsen, The Sit-in Cases of 1964: “But Answer Came There None, ” 1964 Sup Ct Rev 137.

Of course, plaintiff does not exercise political discrimination among those who may enter its common areas, it only postulates a theoretical right to do so. But courts need not issue declaratory or injunctive orders for hypothetical cases. In practical terms, plaintiff seeks to maintain the appearance of a shopping district open to the general public and also to prevent conduct deemed to interfere with its tenants’ commercial objectives, preferably by forbidding any persons from gathering petition signatures on Center property.

Plaintiff asks too much. The record clearly demonstrates that plaintiff and plaintiffs tenants want no political activity carried on at the mall and the trial court granted what amounts to an absolute prohibition against such activity. Equity simply will not spread a complete blanket over all political activity. People can and do peaceably and unobtrusively talk politics at the Center without creating a need for the extraordinary remedy of an injunction forbidding people engaged in this type of political activity from even venturing onto the property. The trial court went too far in issuing an injunction providing that “defendants are hereby restrained and enjoined from entering upon plaintiffs property to exercise their expressions of opinion.” Clearly they can if they do so reasonably, quietly, and peaceably. But defendants are not entitled to engage in noisy exhortations or street theater to express those opinions. In short, defendants cannot be enjoined from entering the Center to express their opinion, so long as they do so reasonably and without interfering with plaintiffs commercial enterprise.

The main focus of this litigation, however, is not on casual or benign political discussion, but on the activities of defendants in gathering petition signatures in the Center’s common areas. This presents an entirely different question and goes far beyond nonobtrusive expressions of opinion. It involves the stopping of potential customers and the distraction of those customers from plaintiffs commercial enterprise. Plaintiff, with remarkable prescience, pleaded the essence of the tests we have set forth as a predicate for the relief it seeks. Plaintiff alleged that it will suffer “great and irreparable injury” by virtue of defendants’ activities and that “defendants’ activity has unreasonably interfered with the plaintiffs use of the property.”

The record reveals that some of the signature-gathering activity does temporarily interfere with the commercial activity at the Center. Some gatherers apparently “buttonhole” potential customers and others set up card tables in heavily trafficked areas to facilitate the project at hand. Such obtrusive activity can be enjoined. But not all petition signature-gathering activity on plaintiffs premises can be enjoined.

The trial court went too far in issuing an injunction providing that “defendants are hereby restrained and enjoined from entering upon plaintiffs private property to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without plaintiffs permission or consent.” Clearly they can if they do so reasonably and peaceably. Moreover, plaintiff is not entitled to an injunction to prohibit peaceful solicitation of signatures in the mall or on its walkways that does not substantially interfere with the commercial activity on the premises. The solicitation of signatures of patrons does not in and of itself constitute substantial interference. The public policy behind the signature-gathering process limits equitable enforcement of plaintiffs preferred total exclusion of signature solicitors.

The court may, however, issue an injunction imposing reasonable restrictions on any attempted possession {e.g., setting up card tables) by defendants of any part of plaintiff s premises and may also place reasonable restrictions on the time, place, and manner of seeking petition signatures in plaintiffs mall and on its walkways so as to reduce or eliminate interference and distraction, short of confining signature solicitors to the least traveled byways and to times when few people are at the Center. The number of petition signature-gatherers may also be limited.

In designing reasonable time, place, and manner rules, a court can draw on other instances in which political and social action have been accommodated with other activities both on public and on private property, as for instance in labor relations. In an earlier case brought by plaintiff against petition signature solicitors (not appealed), Lloyd Corp., Ltd. v. Stachon, et al. (Multnomah County Cir Ct No. A8406-03528), then Circuit Judge William Dale in fact entered such a detailed and qualified order. We express no view about its particular provisions, which rested on the record made in that case, but it shows that a detailed order can be devised.

It bears repeating, to avoid misunderstanding, that the only issue which must be decided in this case as to plaintiffs claim is the scope of equitable intervention, not all legal rights and liabilities that might arise from the acts of either party. An equitable order may be denied, limited, or qualified regardless whether a defendant technically is a trespasser or a nuisance-maker. When an order protects plaintiff s main interest in eliminating or minimizing interference with its tenants and their customers, any residual legal issues may well be left to plaintiffs remedies at law.

III.

In this case, if a declaratory judgment and injunction properly applies ordinary equitable principles, it also will not I violate the constitutional rights of plaintiff. Article I, section 10, of the Oregon Constitution entitles plaintiff to a “remedy by due course of law for injury done” to its property interest; it does not entitle plaintiff to equitable intervention in advance! of any injury. A proper order will not create an easement fori signature-gatherers or anyone else, nor otherwise take plain-1 tiffs property for public use without due process or just com-l pensation contrary to Article I, section 18, of the Oregonl Constitution or to the Fourteenth Amendment. See| Pruneyard Shopping Center v. Robins, 447 US 74, 100 S Ct 2035, 64 L Ed 2d 741 (1980).

We need not engage in any federal or state constitutional declaration. We do not express any opinion as to the dissent’s constitutional analysis. Both sides asked for more than they are entitled to on the present record. There is no proper declaratory or injunctive order. The circuit court’s injunction is lifted, because it went far beyond its justification. The declaratory judgment issued by the circuit court also is too broad and too general.⁷ The declaratory judgment of the trial court merely incorporates from the complaint plaintiffs . phrasing that “plaintiff is entitled to exclude defendants from going on plaintiffs property for any purpose other than shopping or doing business with plaintiff or its tenants.” The case is remanded to the circuit court for preparation of an order consistent with the equitable principles discussed herein.⁸

We do not award costs or attorney fees.

1 The parties agreed that the transcript of the injunction hearing, together with an agreed statement of facts and the pleadings, would be the record on the request for a final injunction. See ORCP 79C(2).

2 Defendants assert that the injunction issued by the circuit court violated their rights under the Oregon Constitution. Specifically, defendants maintain that they have a right to solicit signatures in the Center under the free expression and assembly provisions of Article I, sections 8 and 26. Article I, section 8, provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

Article I, section 26, provides:

“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic].”

Defendants filed counterclaims in which they asked the court to enjoin plaintiff from attempting to eject them from the privately owned portions of the Center and to declare that defendants have a right under the Oregon Constitution to gather initiative petition signatures there.

3 Most of the cases are decided on differing constitutional grounds and are not helpful to our analysis in disposing of this case on a nonconstitutional basis. At last count, seven cases favored the shopping malls: Fiesta Mall Venture, et al. v. Mecham Recall Committee, 2 CA-CV 88-0195 (Ariz Ct App Oct. 31, 1988); Cologne v. West Farms Associates, 192 Conn 48, 469 A2d 1201 (1984); Woodland v. Michigan Citizens Lobby, 423 Mich 188, 378 NW2d 337 (1985); Shad Alliance v. Smith Haven Mall, 66 NY2d 496, 488 NE2d 1211, 498 NYS2d 99 (1985); State v. Felmet, 302 NC 173, 273 SE2d 708 (1981); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa 23, 515 A2d 1331 (1986); Jacobs v. Major, 139 Wis 2d 493, 407 NW2d 832 (1987), and three cases favored the public’s use for activities the same or similar to defendants’ in this case: Robins v. Pruneyard Shopping Center, 23 Cal 3d 899, 592 P2d 341, 153 Cal Rptr 854 (1979), aff’d sub nom Pruneyard Shopping Center v. Robins, 447 US 74, 100 S Ct 2035, 64 L Ed 2d 741 (1980); Batchelder v. Allied Stores International, Inc., 388 Mass 83, 445 NE2d 590 (1983); Alderwood Assocs. v. Envtl. Council, 96 Wash 2d 230, 635 P2d 108 (1981).

4 Avoiding needless constitutional rulings is not a technical nicety of judicial etiquette. If there is no duty to decide the constitutionality of a law, there is a duty not to decide it. This rule prevents premature foreclosure of opportunities for legislators who are better equipped to consider and choose among different policies. See Cologne v. Westfarms Associates, 192 Conn 48, 469 A2d 1201, 1209-10 (1984).

5 See Seufert Bros. Co. v. Hoptowit, 193 Or 317, 328, 237 P2d 949, cert den 343 US 926 (1951); Columbia Fishermen’s Union v. St. Helens, 160 Or 654, 664, 87 P2d 195 (1939); Central Oregon Irr. Co. v. Whited, 76 Or 255, 266, 142 P 779, 146 P 815 (1915); Stotts v. Dichdel, 70 Or 86, 91-93, 139 P 932 (1914); Anderson v. Miami Lumber Co., 59 Or 149, 160, 116 P 1056 (1911); Chapman v. Dean, 58 Or 475, 479-80, 115 P 154 (1911).

6 Indeed, the United States Supreme Court, in Lloyd Corporation v. Tanner, 407 US 551, 567-68, 92 S Ct 2219, 33 L Ed 2d 131 (1972), made a point of speaking of | property privately owned and used “nondiscriminatorily.” The United States Supreme Court’s passing reference to “nondiscriminator[y]” private use does not I explain why, if equity will unquestioningly enjoin “trespass,” plaintiff could not allow partisans of a cause it approved to distribute leaflets or collect signatures and demand | an injunction against persons whose views it opposes.

The conundrum dissolves if one recognizes that an injunction is a discretionary I and “extraordinary” remedy that may be withheld even without reference to a statute [ or constitutional clause. York v. Stallings, supra, 217 Or at 19. This also eliminates the I previous restraint inherent in enjoining people from entering or remaining in the I common areas of the Center only because of their political message. See Near v. Minnesota, 283 US 697, 51 S Ct 625, 75 L Ed 1357 (1931).

7 These are not the same. See State v. Robertson, 293 Or 402, 649 P2d 569 (1982).

8 Contrary to the Chief Justice’s fevered nightmare that the skies of trespass law are falling, the issue in this case is not the law of trespass; it is only the discretionary use of equitable injunctions against conduct that a jury, in a case at law, might find to e a trespass.