Novick v. Izaak Walton League of America Inc Eugene Chapter
Filing
182
ORDER: Granting Motion for Partial Summary Judgment 164 . Signed on 12/15/2011 by Magistrate Judge Thomas M. Coffin. (plb)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
ADAM NOVICK,
99-CV -6190-TC
Plaintiff,
v.
. ORDER
EUGENE CHAPTER, IZAAK WALTON
LEAGUE OF AMERICA, INC., an Oregon
nonprofit corporation,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff brings this action pursuant to the Clean Water Act and the Solid Waste Disposal Act.
He asserts several claims for alleged violations arising from operation of a shooting range on
property adjacent to plaintiff's property.
Presently before the educt is defendant's motion (# 164) for partial sununary judgment on
plaintiff's common law state claims. For the reasons stated below, the motion is allowed and
plaintiff's common law claims are dismissed.
Page 1 - ORDER
Le&al Standard
Federal Rule of Civil Procedure 56 allows the granting of summary judgment:
if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 247-48 (1986).
The movant has the initial burden of establishing that no genuine issue of material faet exists
or that a material fact essential to the nonmovant's claim is missing. Celotex Com. v. Catrett, 477
U.S. 317, 322-24 (1986). Once the movant has met its burden, tbe burden shifts to the nonmovant
to produce specific evidence to establish a genuine issue of material faet or to establish the existence
of all facts material to the claim. lQ,,' see also, Bhan v. NME Hosp .. Inc., 929 F.2d 1404, 1409 (9th
Cir. 1991); Nissan Fire & Marine Ins. Co .. Ltd.. v. Fritz Cos.. Inc., 210 F.3d 1099, 1105 (9th Cir.
2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials
in its own pleading," but must instead "set out specific facts showing a genuine issue of fact for
trial." Fed. R. Civ. P. 56(e).
Material faets which preclude entry of summary judgment are those which, under applicable
substantive law, may affect the outcome of the case. Anderson, 477 U.S. at 248. Faetual disputes
are genuine if they "properly can be resolved only by a fmder of fact because they may reasonably
be resolved in favor of either party." rd. On the other hand, if, after the comt has drawn all
reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not
significantly probative," summary judgment may be granted. rd.
Page 2 - ORDER
Discussion
The parties and court are very familiar with the facts of this old and ongoing case, many of which
are set forth in this court's previous Order (attached to #124).
Defendant argues and persuasively demonstrates that restrictive and permissive language in a
warranty deed from plaintiff's predecessors in interest entitles defendant to summary judgment on
plaintiff's trespass, private nuisance, public nuisance, and negligence claims. See p.p. 5-17 of
Defendant's Memo (#165).
The Warranty Deed by which plaintiff's predecessors in interest conveyed approximately 18 acres
of their land to defendant in August of 1956 contained both restrictive and permissive language, in
the nature of an easement, that immediately follows the metes and bounds of the property, as
follows:
Said property to be used for park, playground and recreational uses
only, but the owners hereby agree to let Izaak Walton League put up
warning signals at any distance they see fit on adjoining property
owned by George E. or Enid Owen, or their heirs or assigns, if same
is needed for safety reasons if part of this land is used as a shooting
range. ALSO George E. Enid Owen agree, and hereby bind their
heirs and assigns to agree, not to sell any land within 500' of above
described property, the purpose being to prevent this from being a
hazard and jeprodize [sic1the use of the property by having people
live too close and will leave this 500' strip for growing timber only.
Def's Exh. 1 attached to #165.
It is clear from tl}e text and context of this restrictive and permissive deed language that in the
event defendant were to use part of the property as a shooting range, as it in fact did, then the
grantors (Owens) intended that there be a 500 foot buffer zone on grantors' adjoining property, to
be used for growing timber only and not for residential purposes, because having people live too
Page 3 - ORDER
close to the shooting range boundary would be too dangerous. Further, grantors agreed to let
defendant place warning signals "at any distance they see fit" on grantors' adjoining property. It is
clear from the language of the Warranty Deed that both parties acknowledged and accepted the fact
that a shooting range could be operated on the property that was being deeded by the Owens to
defendant, and that in that event, defendant would have rights in the nature of an easement to place
warning signs as they saw fit on grantors' property, for bullets from the shooting range to enter
grantors' adjoining property for a distance of up to 500 feet onto that property, and that grantors,
their heirs, successors and assigns would restrict their use of that 500 foot portion of the adjacent
property to growing timber Q!!l.x.
Contrary to plaintiff's arguments, the restrictive and permissive language of the Deed is not
ambiguous. I There is an express grant to defendant ofthe right to place warning signals on plaintiff s
property. Further, plaintiff's use of the 500 feet of adjoining property belonging to plaintiff is
expressly restricted to growing timber only in the event a shooting range is located on defendant's
property. Defendant has operated a shooting range on the property adjacent to defendant's property
since approximately 1956.
It is clear from the face of the Deed that the parties contemplated defendant's use of the
property as a shooting range and acknowledged that if a shooting range were operated there, then
defendant would have the rights as described and plaintiff would be restricted in the use of 500 feet
of his adjacent property so as to provide a bullet hazard buffer zone.
As demonstrated by defendant at p.p. 7-9 of defendant's memo (#165). plaintiff has admitted
IDefendants have demoustrated that all of plaintiff's arguments regarding ambiguity are
not persuasive. See p.p. 2-4 of Defendant's Reply (#174).
Page 4 - ORDER
these facts in his responses to defendant's Request for Admissions, Agreed Facts of the Pretrial
Order lodged herein (#153) and in plaintiffs deposition testimony.
As persuasively demonstrated by defendant with argument and support, plaintiff s alleged claims
for trespass, nuisance and negligence fail as they are rooted in the noise and spent anununition on
up to 500 feet of plaintiffs property, and such has always been permitted and consented to under
terms of the unambiguous 1956 Deed to defendant, which binds all successors, including plaintiff.
See p.p. 13-17 of Defendant' s Memo (# 165). As such, there is no genuine issue of material fact with
respect to plaintiffs common law claims and defendant is entitled to summary judgment as a matter
oflaw. Id ..
Based on the above, this court need not reach defendant's alternate arguments for partial
summary judgment.
Conclusion
Defendant's motion (#164) for partial summary judgment on plaintiff s common law state claims
is allowed and plaintiff s common law state claims are dismissed.
,..
DATED this ~ day of December, 2011
Page 5 - ORDER
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