dissenting in part and concurring in part.
MERITS
According to the majority, “recovery of damages for mental distress absent physical injury is allowed where there is an independent basis of liability in certain [types *82of] cases”1 (Emphasis in original.) and only in those types of cases, unless and until the Supreme Court adds to the list. Even if that conclusion is correct, a finding that the trial court erred in striking the allegations of mental distress in this case requires no extension of existing law. In Edwards v. Talent Irrigation District, 280 Or 307, 570 P2d 1169 (1977), the court held that where a party’s negligence causes interference with another’s use and enjoyment of real property, the injured party may recover for mental distress resulting from that interference. In that case, the plaintiffs brought an action in both negligence and trespass for damage suffered as a consequence of the entry of water onto their property, caused by seepage from the defendant’s irrigation ditch. They prevailed on the negligence theory, recovering general damages for mental anguish and special damages. On appeal, the defendant contended that the trial court erred in refusing to strike the claim for damages for mental distress. The court held that the refusal to strike the allegation was not error:
“* * * [PJlaintiffs in this case do not base their claim solely upon the infliction of mental anguish. The damages shown at trial by plaintiffs included expenses incurred to drain excess water from their property, malfunctioning of plaintiffs’ sewage facilities, death of fruit trees, and garden failure, as well as mental anguish.
“The damages proven [sic] by plaintiffs clearly indicate that defendant’s negligence has interfered with plaintiffs’ interest in the use and enjoyment of their land. In Macca v. Gen. Telephone Co. of N. W., 262 Or 414, 418, 495 P2d 1193 (1972), we held that damages for mental anguish are recoverable in a negligence action when they are a result of defendant’s interference with the use and enjoyment of plaintiffs’ land. 262 Or at 419-420, and cases cited at 420, n 1. This also appears to be the rule in most jurisdictions that have considered the issue. Cases collected at Annotation, 28 ALR2d 1075, 1087 (1953).
“The testimony in this case clearly reveals that the mental anguish for which plaintiffs recovered was the direct result of their concern for the damage to their property caused By defendant’s negligence and their attempts to minimize that damage. They were anguished over the loss of the use of their laundry and bath facilities *83and the necessity of spending hours attempting to drain their land, and for other concerns caused by the entry of the water. We see no reason why defendants should not fully compensate plaintiffs for their injuries. The trial court did not err in refusing to strike plaintiffs’ claim for damages for mental anguish.” 280 Or at 309-10. (Footnotes omitted; emphasis supplied.)
In this case, plaintiff alleged in his third amended complaint that:
“V.
“As a result of the fire in Plaintiffs residence, Plaintiffs property was damaged in the following respects:
“1. Irrepárable damage to Plaintiffs wood stove.
“2. Smoke, heat and water damage to the ceilings and walls of Plaintiffs residence.
“3. Smoke, heat and water damage to Plaintiffs furniture and carpeting, requiring the repair or replacement thereof; which damages are in the sum of $2,253.14, of which $1,053.14 has been repaid to Plaintiff, all to Plaintiffs damage in the sum of $1,200.00.
“VI.
“As a result of the fire in Plaintiffs residence, Plaintiff was subjected to inconvenience, annoyance and discomfort and was damaged thereby in the sum of $5,000.” (Emphasis supplied.)
The majority apparently believes that plaintiffs should have returned to the “drawing board” and alleged more facts. In my opinion, plaintiffs allegations, directly and by inference,2 already describe an interference with the use and enjoyment of plaintiffs property comparable with that established in Edwards v. Talent Irrigation District, supra.3 The claim could have been stated more *84directly but, given plaintiffs description of the consequences of defendant’s alleged negligence (a fire in the dwelling area of plaintiffs home causing “[s]moke, heat and water damage”) and the nature of the allegations of the resulting mental distress (“inconvenience, annoyance and discomfort”),4 the complaint sufficiently alleges such interference and that plaintiffs mental distress arose therefrom.5 Any questions about the basis of plaintiffs claim for mental distress or the nature and extent of that distress could have been resolved by a motion and order to make more definite and certain. ORCP 21D.
Plaintiffs allegations bring this case within the exception to the “general rule” barring recovery. Plaintiff has alleged more than damage to property. He has alleged, expressly and by inference, that: (1) there exists an “independent basis of liability,” i.e., negligent injury to real property causing interference with its use and enjoyment and (2) his mental distress is the direct and natural result of defendant’s wrongful act. Because of the disposition of the case below, no evidence has been adduced. Plaintiff may be unable to prove that the interference with his use and enjoyment was substantial or that his mental distress was “real and not feigned.” However, I do not believe it can be said as a matter of law that “inconvenience, annoyance and discomfort” are never the direct, natural, “common and *85predictable results” of the specific wrongful act alleged here. Whether they are in this case would be more appropriately determined after plaintiff has had an opportunity to present evidence in support of his claim.6
Notwithstanding the above, I am not convinced that the rule applied by the majority either is or should be the standard in cases where there is no physical injury and a plaintiff seeks damages for mental distress. The majority seems to fear that, as a result of any departure from the rule it applies, the courts will be besieged by hordes of frenetic plaintiffs, each one claiming that some negligent scoundrel scratched the finish of his or her meticulously maintained sports car and that, as a result, he or she suffered mental distress, treatment for which required hospitalization, electro-shock sessions and group therapy. I agree with the majority’s statement that damages for mental distress are inappropriate in cases not “involving an interference with the person beyond the inconvenience and distress always resulting from interference with property.” (Slip opinion at 4.) However, the policy underlying that principle is served simply by requiring that the mental distress alleged be serious and not trivial. As stated in Rodrigues v. State, 52 Haw 156, 172-73, 472 P2d 509 (1970):
“* * * It is universally agreed that there are compelling reasons for limiting the recovery of the plaintiff to claims of serious mental distress. The reasons offered to limit recovery are that mental distress of a trivial and transient nature is part and parcel of everyday life in a community, that under certain circumstances social controls may deal more effectively with mental distress, that some kinds of mental distress may have a beneficial therapeutic effect, that the law should not penalize the ‘prime mover’ in society nor curry to neurotic patterns in the population.
*86* * * We propose a standard similar to that adopted by the Restatement with regard to the intentional infliction of mental distress. See Restatement Second, .Torts § 46 comment j at 77 * * * [and] hold that serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” (Emphasis in original; citations omitted.)
The failure of plaintiff to state a rule that insures against future inappropriate claims for damages for mental distress should not prevent our considering the validity of this claim.
Although I agree with the majority’s rejection of plaintiffs argument that “whenever a wrongful act gives rise to tort liability, mental suffering is compensable,” I do not believe that the majority’s listing of the “certain [types of] cases” in which recovery will be allowed should be deemed final and exclusive. The treatment of those “exceptions” to the general rule by the court in Rodrigues v. State, supra, 52 Haw at 170-71, avoids the problems inherent in both of those positions:
“We begin with the proposition that • the interest in freedom from the negligent infliction of mental distress has in fact been protected whenever the courts were persuaded that the dangers of fraudulent claims and undue liability of the defendant were outweighed by assurances of ‘genuine and serious’ mental distress. Cf. Prosser, supra, § 55 at 348. In drawing exceptions to the rule of no recovery, the courts have found such assurances in an accompanying physical injury or impact, host cause of action, or special factual pattern.
" * * * *
“As we have noted, the principle to be extracted from the exceptions is that they involve circumstances which guarantee the genuineness and seriousness of the claim. The better view is to treat such exceptions as examples of trustworthy claims deserving of legal redress and not as restrictions on the plaintiffs right to recover.* * *”
Such an approach is not inconsistent with the Oregon decisions involving claims for mental distress where there exists an independent basis of liability. In Hinish v. Meier & Frank Co., 166 Or 482, 506, 113 P2d 438 (1941) (claim for *87mental distress resulting from an invasion of privacy), the court held:
“* * * [I]t is well settled that where the wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is the direct, proximate and natural result of the wrongful act: Larson v. Chase, 47 Minn. 307, 310, 50 N. W., 238, 28 Am. St. Rep. 370, 14 L.R.A. 85; 17 C.J. Damages, 828, § 151. Violation of the right of privacy is a wrong of that character.” (Emphasis supplied.)
The principle is also stated in Macca v. Gen. Telephone Co. of N.W., supra, 262 Or 414, 420 n 1, 495 P2d 1193 (1972) (erroneous listing of a phone number resulting in interference with use and enjoyment of property). In Larson v. Chase, 47 Minn 307, 310-12, 50 NW 238 (1891), the source of the rule stated in Hinish, the court explained:
“* * * There has been a great deal of misconception and confusion as to when, if ever, mental suffering, as a distinct element of damage, is a subject for compensation. This has frequently resulted from courts giving a wrong reason for a correct conclusion that in a given case no recovery could be had for mental suffering, placing it on the ground that mental suffering, as a distinct element of damage, is never a proper subject of compensation, when the correct ground was that the act complained of was not an infraction of any legal right, and hence not an actionable wrong at all, or else that the mental suffering was not the direct and proximate effect of the wrongful act. * * * Wherever the act complained of constitutes a violation of some legal right of the plaintiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and natural consequence of the wrongful act. That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument. * * *” (Emphasis supplied.)
To the same effect, see Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966) (holding that plaintiff had a cause of action of mental distress because of the wrongful disinterment of husband’s body). See also McEvoy v. Helikson, 277 Or 781, 788-89, 562 P2d 540 (1977) (negligence resulting in infringement of plaintiffs legal right to custody of his *88child) and cases cited therein; Douglas v. Humble Oil, 251 Or 310, 317, 445 P2d 590 (1968) (mental distress compensable in action for trespass and conversion where evidence revealed that plaintiff was “understandably disturbed by the experience”).
I am not convinced that allowing plaintiff the opportunity to prove the claimed damages for mental distress would require a departure from the principles expressed in the decisions noted above. Furthermore, denial of that opportunity in this case is demonstrably unreasonable. Had the fire involved here started on defendant’s property and, because of defendant’s negligence, spread to plaintiffs property causing precisely the same damage plaintiff has alleged, presumably it would have been error for the trial court to allow a motion to strike the allegations of mental distress because those damages may be recovered in actions for trespass and nuisance. I can see no purpose or logical basis for such a distinction;7 therefore, I disagree with the majority’s conclusion that recovery for mental distress is or should be restricted to those “certain [types of] cases” listed by the majority and with its holding that mental distress can never result from the tortious conduct and resulting damages alleged here.
For these reasons I cannot join in the majority’s decision that it was error to strike the claim for mental distress.
JURISDICTION
Plaintiff contends that the trial court should not have dismissed the action on the ground that exclusive jurisdiction lies in district court for claims under $3,000 when, as here, a good faith claim was made in excess of that amount at the outset of the case.
As the majority observes, whether the circuit court should dismiss a claim for damages that is reduced by pleadings or motions to an amount within the exclusive jurisdiction of the district court is a question of first impression. In federal practice, when the amount in controversy has fallen below the jurisdictional limit as a result *89of actions taken at the pleading stage, jurisdiction is determined by the amount of the original claim:
“The fact that there is an apparently valid defense to all or a part of the amount claimed will not destroy federal jurisdiction over the claim. For example, the fact that a cause of action might be barred by a statute of limitations does not remove jurisdiction from the federal court to hear the action. Nor does a defense of the statute of limitations to all or part of the value of the amount claimed affect the jurisdictional basis of this amount in controversy. A defense to the amount claimed might not be raised in the trial on the merits, and even if raised may be shown to be invalid. And a court should not confuse the determination of its jurisdiction with an adjudication on the merits of the validity of the amount claimed. Even if part of the claim is dismissed by summary judgment on the issue of statute of limitations, thereby reducing the remainder to an amount lower than the jurisdictional minimum, the court still has jurisdiction to adjudicate the rest of the claim.” 1 Moore’s Federal Practice at 864-65 (2d ed 1982). (Footnotes omitted.)
The federal rule thus appears to be that when an initial claim in excess of the jurisdictional amount is reduced at the pleading stage, the court will nonetheless continue to adjudicate the claim. At least one other jurisdiction with a state court system similar to ours has adopted this approach. See Joslyn v. Professional Realty, 622 P2d 1369, 1373-74 (Wyo 1981).
I would adopt a similar approach, because it seems likely to promote efficient use of the court system and would provide a helpful tool to our trial judges, who often confront this problem. The problem of litigants praying for inflated damages in order to boost their cases out of district court into circuit court .should be adequately controlled by the requirement that the initial claim be made in good faith, that is, that it not appear on its face to be made solely to gain circuit court jurisdiction. Unlike the majority, I would adopt the good faith requirement of the federal rule, although I concur in the majority’s decision that the circuit court here erred in dismissing this action.
60 Or App at 73.
See ORCP 12A:
“All pleadings shall be liberally construed with a view of substantial justice between the parties.”
The majority points out that the plaintiff has alleged no “ongoing interference.” The smoke and water damage alleged raises the inference of an ongoing interference. In any event, as stated in Prosser, Torts 579-80, § 87 (4th ed 1971):
“It is sometimes said by courts and writers that a nuisance must involve the idea of continuance or recurrence over a considerable period of time. * * * The proper statement would * * * appear to be that the duration or recurrence of the interference is merely one — and not necessarily a conclusive — factor in determining whether the damage is so substantial as to amount to a nuisance." (Footnotes omitted; emphasis supplied.)
See Macca v. Gen. Telephone Co. of N. W., 262 Or 414, 420, 495 P2d 1193 (1972); Lunda v. Matthews, 46 Or App 701, 613 P2d 63 (1980).
Although certainly in the usual case the interference is the consequence of an act or omission of the defendant that occurs somewhere other than on the plaintiffs property, see, e.g., Lunda v. Matthews, supra, n 4, the alleged interference with the plaintiffs interest in the use and enjoyment of his property is not rendered less substantial because the defendant’s wrongful act occurred in plaintiffs home. Furthermore, as stated by the court in Edwards v. Talent Irrigation District, 280 Or 307, 309-10 n 2, 570 P2d 1169 (1977):
“ ‘Private nuisance is a field of tort liability. It is not a single type of tortious conduct * * *.
“ ‘Failure to recognize that private nuisance has reference to the interest invaded and not to the type of conduct which subjects the actor to liability has been a fertile cause of confusion. Thus, in respect to an interference with the use and enjoyment of land, attempts are made to distinguish between private nuisance and negligence, overlooking the fact that private nuisance has reference to the interest invaded and negligence to the conduct that subjects the actor to liability for the invasion.’ 4 Restatement 220-221, Torts, Scope and Introductory Note to Chapter 40.”
In the majority of Oregon cases in which the question has been considered, the Supreme Court and this court had the benefit of an evidentiary record in making the decision whether damages for mental distress could be recovered. See e.g., Mooney v. Johnson Cattle, 291 Or 709, 634 P2d 1333 (1981); Melton v. Allen, 282 Or 731, 580 P2d 1019 (1978) (summary judgment); Edwards v. Talent Irrigation District, supra, n 5; Fredeen v. Stride, 269 Or 369, 525 P2d 166 (1974); Macca v. Gen. Telephone Co. of N. W., supra, n 4; Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968); Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966); Lunda v. Matthews, supra, n 4; Senn v. Bunick, 40 Or App 33, 594 P2d 837, rev den 287 Or 149 (1979).
See discussion n 5, supra.