Trotter v. Town of Stayton

77 P. 395, 45 Or. 301, 1904 Ore. LEXIS 100

Opinion

Mr. Justice Bean,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. The motion to strike out paragraph four of the complaint was properly overruled. The right to recover damages for withholding the possession of real property, given by Section 326, B. & 0. Comp.,

* is equivalent to the common-law action for trespass for mesne profits, and “includes all damages to which the owner is entitled on account of the wrongful occupation of the property” : Wythe v. Myers, 3 Sawy. 595 (Fed. Cas. No. 18119). Ordinarily, the measure of damages is the fair value of the use of the premises during the occupancy of the defendant-; but the plaintiff is not confined alone to such damages. He is entitled to recover all damages which he may suffer, fairly resulting from the wrong complained of, if specially pleaded : 10 Am. & Eng. Enc. Law (2 ed.), 547; Newell, Ejectment, pp. 607, 627; 3 Sedgwick, Damages, § 907; 3 Sutherland, Damages, §§ 993, 994; Herreshoff v. Tripp, 15 R. I. 92 (23 Atl. 104); Dunn v. Large, 26 Eng. Common Law, 223. At common law nominal damages only were recoverable in an action of ejectment, and a plaintiff, if he recovered more, was obliged to bring an independent action in trespass to recover mesne profits. The statute combines these two actions; but there is no reason why a plaintiff may.not plead and give in evidence in an action to recover real property under the statute any damages he may have suffered, fairly resulting from his having been wrongfully kept out of the possession. In this, as in all cases, compensation is the measure of damages, and if a plaintiff has been unnecessarily annoyed or harassed and his business injured by the wrongful acts of a defendant in taking and retaining possession of real property, there is no reason why, in an action to recover possession thereof, he may not plead and recover such special damages. The matters set up in the fourth paragraph of the complaint, if true', entitled the plaintiff to damages in excess of the mere rental value of the property, and were, we think, proper to be pleaded in an action of this character. This conclusion disposes of the objections made by the defendant to the evidence offered and admitted tending to sustain the allegations of the complaint.

2. On motion of the plaintiff the court excluded all witnesses of the defendant from the courtroom, except the one under examination. The defendant’s counsel requested that the recorder of the defendant municipality be exempt from the order and permitted to remain within the bar of the court for the purpose of advising with counsel during the trial. This request was denied, and the ruling is assigned as error. The statute provides that, if either party requests it, the judge may exclude from the courtroom any witness of the adverse party not at the time under examination : B. & C. Comp. § 843. This statute does not authorize the exclusion of a party (Schneider v. Haas, 14 Or. 174, 12 Pac. 236, 58 Am. Rep. 296); but an officer of a corporation litigant is not within that sense a party, and especially where, as in this case, no showing was made that he possessed any special information or knowledge concerning the case on trial which would render it necessary that he should remain in the courtroom to protect the interests of the defendant.'. Whether an officer of a corporation might not occupy such a relation toward it and the subject-matter of the litigation as to be within the spirit of the rule announced in Schneider v. Haas, 14 Or. 174 (12 Pac. 236, 58 Am. Rep. 296), we do not undertake to decide.

3. The defendant offered in evidence the decree of the circuit court, rendered in the suit in equity brought by the plaintiff against the defendant to quiet his title; but the court refused to admit it, and in this there was no error. The decree had been reversed, and a final decree rendered in this court establishing the plaintiff’s title, and the rights of the parties must be ascertained from the decree on appeal, and not from that of the court below: Gentry v. Pacific Livestock Co. 45 Or. 233 (77 Pac. 115).

4. The remaining question discussed in the brief is based on the alleged error of the trial court in refusing to admit in testimony certain proceedings of the common council of the defendant corporation, had after the final decree in the equity suit, for the purpose of condemning and appropriating for public use the property now in controversy. This matter is not assigned as error in the abstract, and under Bule 10 of this court (35 Or. 587, 598) and the decision interpreting it (Re Assignment of Bank of Oregon, 32 Or. 84 51 Pac. 87), we are probably precluded from considering it. Passing over this point, however, the record was properly excluded because the proceedings were not consummated, and the final ordinance, attempting to appropriate the property in question, was not passed by the council, until after the issues in this case had been made up, and it is not pleaded as a defense. The amended answer was filed on the 14th of October, 1902, and the reply filed on the 18th of the same month. Ordinance No. 67, “to straighten certain streets within the Town of Stayton,” was passed by the council about a month later, and no supplemental answer was filed setting up such proceedings as a defense.

It follows that the judgment must be affirmed, and it is so ordered. Affirmed.

This section is as follows: “Any person who has * * may recover such possession, with damages for withholding the same, by an action at law.”