Supreme Court of Oregon
BRAND, Justice.
[Plaintiff owned an outdoor, drive-in movie theater. Defendant owned a horse racetrack on adjacent property. The racetrack was equipped with lights for night racing. The plaintiff sued for trespass to land and nuisance, claiming that the lights from the racetrack interfered with the movie screen. The trial court directed a verdict for the defendant.]
In installing outdoor moving picture theaters, it is necessary to protect the premises from outside light interference. For that purpose, the plaintiff constructed wing fences for a considerable distance on each side of the screen and along the westerly line of Union Avenue for the purpose of shutting off the light from the cars traveling on that arterial highway. It was also necessary to construct a shadow box extending on both sides and above the screen for the purpose of excluding the light from the moon and stars. The testimony indicates that the construction of the shadow box was necessary if a good picture was to be presented on the screen. The extreme delicacy of plaintiff's operation and the susceptibility of outdoor moving pictures to light in any form was conclusively established by the evidence.
In order to illuminate the defendant's track for night horse racing, approximately 350 1500-watt lights are mounted in clusters on 80-foot poles placed at intervals of approximately 250 feet around the track. The flood lights are in general, directed at the track, but there is substantial evidence to the effect that reflected light 'spills' over onto the plaintiff's premises and has a serious effect on the quality of pictures shown on the screen. The nearest cluster of lights on the defendant's track is 832 feet distant from the plaintiff's screen. The light from the defendant's track not only impairs the quality of the pictures exhibited by the plaintiff, but there is also substantial evidence that plaintiffs have suffered financial loss as the result of the illumination of which they complain. On one occasion at least, plaintiffs felt themselves required to refund admission fees to their patrons on account of the poor quality of the picture exhibited. The evidence discloses that the light from the defendant's race track when measured at plaintiff's screen is approximately that of full moonlight.
Upon the opening of the racing season in September, 1946, the plaintiff immediately complained to the defendant concerning the detrimental effect of defendant's lights, and shortly thereafter suit was filed. In the fall of 1946 the defendant, while denying liability, nevertheless made substantial efforts to protect the plaintiff from the effect of defendant's lights. One hundred hoods were installed on the lights, and particular attention was given to those nearest to the plaintiff's property. In 1947, and prior to the spring racing season, which was to last 25 days, thirty louvers were also installed for the purpose of further confining the light to the defendant's property. These efforts materially reduced, but did not eliminate the conditions of which plaintiff complains.
Plaintiff contends that the defendant, by casting light equivalent to that of a full moon upon plaintiff's screen has committed a trespass upon real property and error is assigned by reason of the failure of the court to submit to the jury the question of trespass. While the dividing line between trespass and nuisance is not always a sharp one, we think it clear that the case at bar is governed by the law of nuisance and not by the law of trespass. Under our decisions every unauthorized entry upon land of another, although without damage, constitutes actionable trespass. Kesterson v. California-Oregon Power Co., 114 Or. 22, 228 P. 1092; Huber v. Portland Gas & Coke Co., 128 Or. 363, 274 P. 509; 52 Am.Jur., Trespass, § 47, p. 872; Restatement of the Law of Torts, Vol. 1, § 158, p. 359. The mere suggestion that the casting of light upon the premises of a plaintiff would render a defendant liable without proof of any actual damage, carries its own refutation. Actions for damages on account of smoke, noxious odors and the like have been universally classified as falling within the law of nuisance. In fact, cases of this type are described in the Restatement of the Law as 'non trespassory' invasions. Restatement of the Law of Torts, Vol. 4, Ch. 40, p. 214, et seq.
Many of the cases on which plaintiff relies in support of its theory of trespass involve the flight of airplanes at low level over plaintiffs' land. The modern law with reference to trespass by airplanes has developed under the influence of ancient rules concerning the nature of property. Ownership of lands, it has been said, 'includes, not only the face of the earth, but everything under it or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim, Cujus est solum ejus est usque ad coelum'. 50 C.J. 752, Property, § 24. Harmonizing the ancient rule with the necessities of modern life, the Restatement of the Law declares that one who intentionally and without a privilege enters land, is a trespasser. Restatement of the Law of Torts, Vol. 1, § 158, p. 359. Air travel over a plaintiff's 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. Restatement of the Law of Torts, §§ 158, 159, 194.
In support of its theory of trespass, the plaintiff cites Swetland v. Curtiss Airports Corporation, 6 Cir., 55 F.2d 201, 83 A.L.R. 319; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; and Guith v. Consumers Power Co., D.C., 36 F.Supp. 21. They are all cases which involve the flight of airplanes and which reflect the influence of the ancient rules of ownership ad coelum as modified by the rules of privilege set forth in the Restatement. The historical background of these cases distinguishes them from the non trespassory cases which are controlled by the law of nuisance. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, was similar in principle to the Causby case, supra. The case involved a taking by the United States by means of the continuous firing of artillery over the petitioners' land. We need not argue the distinction between a cannon ball and a ray of light. Upon this issue plaintiff also cites National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A.L.R. 91, and The Shelburne, Inc. v. Crossan Corporation, 95 N.J.Eq. 188, 122 A. 749, both of which cases involve the shedding of light upon defendant's property, but both were decided upon the theory of nuisance and not of trespass.
[The court then held that the defendant’s conduct did not constitute a nuisance, which involves the defendant’s interference with the plaintiff’s right to use and enjoyment of his/her land. The casting of light of about intensity of moonlight from the race track, which was built around the same time as the movie theater, was not sufficient to support an actionable claim of nuisance.]
The trial court did not err in directing a verdict. The judgment is affirmed.