Plaintiffs appealed, and we affirmed in part and reversed in part. Mark v. Dept. of Fish and Wildlife, 158 Or. App. 355, 974 P.2d 716, rev den, 329 Or. 479 (1999) ( Mark I). While we agreed with the trial court that discretionary function immunity precluded any recovery of damages, id. at 369, we also held that, under the Supreme Court's intervening decision in Penland v. Redwood Sanitary Sewer Service Dist., 327 Or. 1, 956 P.2d 964 (1998), plaintiffs were not similarly precluded from obtaining injunctive relief. Mark I, 158 Or App. at 365. Thus, we remanded plaintiffs' private nuisance and public nuisance claims for trial and, if appropriate, the issuance of injunctive relief.
Silverton Land acknowledges that landowners who do not themselves engage in activity constituting a nuisance may nevertheless be liable for the acts of third parties that create a nuisance on their land if they "both (1) know that the activity is being carried on and will involve an unreasonable risk of causing the nuisance and (2) consent to the activity or fail to exercise reasonable care to prevent it." Mark v. State Dep't of Fish & Wildlife (Mark I), 158 Or. App. 355, 362-63 (1999) (citing Restatement (Second), Torts §838 (1979)). However, this rule is generally limited to situations where the landowner has the ability to control activities on the land, including the relevant acts of third parties.
Thus, where, as here, a defendant's ORCP 21 A(8) challenge is based on a defense to otherwise well-pleaded claims, "[t]hat defense is available on an ORCP 21 A(8) motion only if it appears on the face of the complaint." Mark v. Dept. of Fish and Wildlife , 158 Or.App. 355, 357 n. 1, 974 P.2d 716, rev. den. , 329 Or. 479, 994 P.2d 127 (1999). On review of a grant of dismissal under ORCP 21 A(8), "we accept as true all well-pleaded allegations in the complaint and give plaintiff the benefit of all favorable inferences that may be drawn from the facts alleged."
Our review of a ruling under ORCP 21 A(8) is based solely on the allegations in the complaint. Mark v. Dept. of Fish and Wildlife, 158 Or App 355, 357 n 1, 974 P2d 716, rev den, 329 Or 479 (1999). However, on a motion to dismiss for lack of subject matter jurisdiction under ORCP 21 A(1), if
ORCP 21 A(8) decisions on a motion to dismiss for failure to state a claim may not be granted on the basis of anything other than the body of the pleadings themselves. See Mark v. State Dept. of Fish and Wildlife, 158 Or. App. 355, 357 n 1, 974 P.2d 716, rev den 329 Or. 479 (1999). A challenge to the legal sufficiency of a claim that requires the court to examine documents other than the pleadings must to be pursued via a summary judgment motion.
Because the primary responsibility for preventing public nuisances lies with public authorities, a private action to enforce that right requires proof that the plaintiff has suffered or is suffering an injury distinct from the injury suffered by the public at large. Mark v. State Dep't of Fish & Wildlife, 158 Or. App. 355, 360, 974 P.2d 716 (1999). Defendants argue that Plaintiffs have not alleged a public nuisance that has caused any Plaintiff injury distinct from any injury suffered by the public.
” Mark v. State Dep't of Fish & Wildlife, 158 Or.App. 355, 360 (1999). But as discussed above, plaintiffs' injury is not exactly one in private nuisance, as nuisances generally do not involve trespass, are capable of abatement or enjoinment, and complain of an injury to the personal comfort of dwellers on the land, not an injury to the land itself.
“A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360, rev. den., 329 Or. 479 (1999).
As plaintiff correctly notes, a “private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360 (1999).
The right to recover is in the person whose land is harmed." Drayton v. City of Lincoln City, 244 Or. App. 144, 148 (2011) (quoting Mark v. Dept. of Fish and Wildlife, 158 Or. App. 355, 360 (1999)). To constitute a nuisance, the alleged conduct or action must "substantially and unreasonably interfere[] with the use and enjoyment of [a] plaintiff['s] property."