concurring in part and dissenting in part.
I concur wholeheartedly with the majority up to the point where it begins to discuss the jury’s special damage award for mental anguish. To that point the opinion is cogently reasoned and beautifully written. I dissent from the rest of the opinion.
*43The majority correctly notes:
"Ordinarily, mental anguish is not compensable in a trespass case; but it is properly within the jury’s function to take it into account where it is 'the direct and natural result of a specific trespass.’ ” Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968).
The trial judge in colloquy with counsel stated his view that "if there is evidence that the wrongful action of the defendant caused a mental or emotional distress on the part of the plaintiff, that can be considered as part of the damages suffered ***.” The generality of the Douglas rule, which in terms seems to be one only of causation, has been limited by later cases.
In Fredeen v. Stride, 269 Or 369, 373, 525 P2d 166 (1974), a conversion case, it was said that "mental suffering is a proper element of damages where evidence of genuine emotional damage is supplied by aggravated conduct on the part of defendant.” More recently the Supreme Court, in a nuisance action involving the seepage of water from an irrigation ditch (where there was evidence of expenses for draining the excess water, malfunction of sewage facilities, death of trees and "garden failure,” as well as evidence of mental suffering as a result of concern for the damage to their property), plaintiffs’ judgment which included compensation for that suffering was sustained. Edwards v. Talent Irrigation District, 280 Or 307, 570 P2d 1169 (1977). But the court was careful to point out that the holding there was limited to cases based on nuisances, and it specifically avoided any attempt to alleviate the acknowledged confusion existing in the law.
I do not believe that this case calls for an extended analysis of the law applicable to claims of mental anguish either, for I would conclude that the trial court erred in submitting the claim to the jury because the quantum of evidence was insufficient. There were activities chargeable to defendants which amounted to trespasses, and there was evidence of permanent *44damage to plaintiffs’ property. The general damages awarded were compensation for those wrongs. See Hudson v. Peavey Oil Company, supra, 279 Or at 10. In their brief plaintiffs recite the separate elements of the course of events and repeatedly assert that they "must have been” "frustrating,” "traumatic” and "upsetting,” or they "must have” made plaintiffs feel they were being imposed upon.
The record does not disclose all of that. After defendants had moved to strike the mental anguish claim as unsupported by any evidence, and after the court had indicated it would allow the motion, plaintiffs received permission to reopen their case to recall Mr. Senn. His entire testimony is set out in the margin.1 That testimony was not sufficient to carry the burden of showing that he suffered "genuine emotional damage” in any special sense different than that which would flow from any substantial interference with the use and enjoyment of property. Mrs. Senn did not testify at all.
We would be authorized simply to strike the award of special damages from the judgment were it clear that the $5,000 was entirely for emotional damages. Baumbach v. Poole, 266 Or 154, 160, 511 P2d 1219 (1973). Plaintiffs also asked for other special damages for the cost of restoring pasture and the cost of keeping their livestock on other land while the fence was down. Because we cannot determine whether the amount of special damages encompassed more than mental anguish, we should remand the case for retrial on the limited issue of special damages.
I find in the record no evidence of actual malice or ill will toward the plaintiffs. The trial judge read *45McElwain v. Georgia-Pacific, 245 Or 247, 421 P2d 957 (1966), as supporting punitive damages whenever there is evidence of the intentional disregard of the rights of others. That is too broad a reading to give the language the majority quotes from Supreme Court cases. And it is utterly inconsistent with the Supreme Court’s recent holding in Chamberlain v. Jim Fisher Motors, Inc., 282 Or 229, 237, 578 P2d 1225 (1978), "that gross negligence or recklessness is not, in and of itself, sufficient to support an award of punitive damages.”
The wrongful conduct of defendants consisted of related but separate acts, which fairly should be characterized in somewhat different ways. The destruction of the fence was the result of carelessness in doing the intentional act of leveling certain of the lots, as was the spreading of dirt onto plaintiffs’ property. I do not believe the situation (which was subsequently substantially corrected by the erection of a new fence and the removal of most of the spillover) was of such a nature as to warrant the award of punitive damages. Although the defendants’ conduct in this instance was somewhat more egregious than that described in Baumbach v. Poole, supra, what had happened there caused more severe and permanent harm than was caused in this instance. Still it was held not to support punitive damages. The diversion of the creek in the course of building the coffer dam was temporary or intermittent and inadverent; not only that, but there was evidence that the defendants used proper and necessary techniques in the process of building it. The taking of some dirt from plaintiffs’ land to build the coffer dam may well have been inadvertent, due to doubt about the boundary lines of the sewer easement, *46but it was certainly not of the societal significance that would warrant punitive damages.2
The only harm done that the evidence showed was permanent, perhaps irremedial, and had consequences which would substantially affect plaintiffs’ use and enjoyment of their property was the closure of the southerly of the two stream channels. The evidence was that during times of heavy runoff, and then for brief periods of hours or at most two or three days, a heavier flow of water was cast into the remaining old channel, that some new channeling had been cut through the formerly somewhat swampy meander areas around the old stream bed, and that at flood time the water rises somewhat higher than formerly and, of course, now entirely on plaintiffs’ land. Also, there was some, although not clearly delineated, increase in erosion in limited areas.
There was no evidence that the plaintiffs’ utilization of their property for livestock or other domestic activities was at all permanently diminished. That future development of the property was discouraged or made less feasible, though suggested by one witness, was taken out of the case by Mr. Senn’s own testimony that he had no present plans for the land other than to have it in the forest land tax classification it is now in — and that classification was not affected by defendants’ actions.
Defendants did not adequately consider the effects of their actions on plaintiffs’ interests, and they thereby cast some burden on plaintiffs that they ought not to have. Nonetheless, I do not believe that the evidence, taken by the whole, showed "a particularly aggravated disregard” for consequences that warranted the trial court’s submission of punitive damages to the jury.
*47SCHWAB, CHIEF JUDGE, LEE, J., and TANZER, J., join in this opinion."Q. Mr. Senn, did this course of conduct by the defendant to which you have testified, cause you any mental anguish and suffering, frustration or humiliation?
"A. Yes, very much so.
"Q. Will you describe?
*45"A, Well, from the time it started until I got down to the — to where I had to hire an attorney, I was upset all the time. In fact, it caused me not able to carry on with my own work. I was always on [sic] my home and when I got home at night I wondered what was happening next because I could not keep my mind on any of it.”
I note here that defendants did not move against punitive damages in the discrete ways the foregoing suggest they might have done. Their approach was "whole hog or none.” Furthermore, nothing is before us respecting the trial court’s instructions on punitive damages.