Baldock v. Atwood, 21 Or. 73

Baldock v. Atwood

21 Or. 73 | Or. | 1891

StbahaN, C. J.

The first question made by the appellants is the action of the court below in allowing the plaintiff: to file the second amended complaint. It is contended that it is such a departure from the cause of suit set up in the original and first amended complaint, that it is in no sense an amendment, but an original complaint, setting up an entirely new and distinct cause of suit. It is true it contains a number of allegations not found in either the original complaint or the first amended complaint, but this of itself is not sufficient to deprive the plaintiff of the right to amend upon leave of the court.

The amendment does not change the controversy. The suit still is in relation to the water alleged to have been appropriated by the plaintiff and his right to have it flow to and upon his land. This is the real gist of the suit. Any amendments of the pleadings which would further support this right might be permitted by the court in furtherance of justice; so also any amendment of the answer which tended to defeat the cause of suit set up.by the plaintiff might be allowed the defendant on the like terms.

The power of amendment under the code ought to be liberally exercised in furtherance of justice. While the parties are in court they ought to be permitted to shape their pleadings in such form as they may be advised so as to present the real questions at issue, that the same may be determined with as little delay and expense as possible. Nothing is ever gained by turning a party out of court or compelling him to take a nonsuit on account of some defect in his pleading, not discovered perhaps until during the progress of the case, when an amendment could supply the *80defect and the action or suit be brought to an early determination. The defendants did not request to take additional evidence after the amendment, and it is not claimed that they were in any way prejudiced on the merits by allowing it. We therefore think the court below properly allowed the amendment. (Miner v. O'Harrow, 60 Mich. 91; U. S. v. Am. Bell Tel. Co. 39 Fed. Rep. 716; Rogers v. Hodgson, 46 Kan. 276; Leroy etc. R. R. Co. v. Small, 46 Kan. 300.)

It appears from the pleadings and evidence that the plaintiff as early as 1862 appropriated and commenced to use the water from Baldock slough for irrigating his land and for domestic and stock purposes. This slough at that time was connected with Powder river, and from one-third to one-half of the water of said river flowed into it. Although called a slough, it was to all intents and purposes a natural watercourse. Some time thereafter the channel of Powder river changed, either from natural or artificial causes, so that the head of the slough ceased to connect with said stream. Baldock then put a dam in said river and cut a ditch again connecting the river and slough. This ditch was cut through lands in the possession of one C. B. Fisher and owned by him or else the legal title was in the state. However that may be, Fisher subsequently succeeded to the state’s title and the defendants have acquired whatever interest Fisher had in the premises. The evidence tends to prove that Baldock paid Fisher a valuable consideration for the right to cut said ditch. One or two witnesses testify expressly to the fact, though the circumstances and the price paid do not appear with as much distinctness as they ought. Baldock slough was a crooked, sluggish stream, and in some of its windings a lot of Chinese gardeners established themselves and engaged in gardening. For the purpose of raising the water high enough so as to use it on their gardens, they threw willow brush and other débris into the stream which obstructed the flow of the water and interfered with the plaintiff’s supply.

*81The evidence further tends to prove that the defendants were desirous of filling up said slough and causing a ditch to be dug on the section line between sections 16 and 21, and for that purpose employed C. M. Foster, a surveyor, to ascertain the exact location of said line, and to mark the place where said ditch was to be dug, by the setting of stakes. Soon after the stakes were set, Baldock with his men entered upon said premises with the consent of the defendants, as clearly appears by a preponderance of the evidence, and cut a ditch on the line marked out and designated by the defendants for that purpose. This new channel was cut about the year 1880, and was thereafter continuously used by the plaintiff as the means of his water supply for his farm. It, followed the section line through the defendants’ premises to where it connected with Baldock slough, through which the water was conveyed to the lower part of Baldock slough, and from there to plaintiff’s farm, three miles or more from the head of the ditch. A concise detail of all the facts would be too voluminous for this opinion. It suffices to say, we think the evidence tends very strongly to prove that the plaintiff acquired of Fisher for a valuable consideration the right to cut through his land so as to continue his supply of water, if indeed he had not already acquired the right by prescription.

Whether he had such right, it is perhaps unnecessary for us to decide at this time. Several reasons would incline us to hold that the change of the channel of Powder river under the circumstances detailed in the evidence did not deprive the plaintiff of the right to have the accustomed amount of water flow from the river into the slough, but if it did the plaintiff acquired the right of Fisher by contract and the payment of a valuable consideration therefor. This, followed by the digging of the ditch and the work and labor connected therewith, and the continuous possession thereof for a length of time sufficient to bar an entry, would give perfect legal title; but if any circumstances *82were lacking to make the legal title perfect by adverse possession, the facts create a right so strong that no court of equity could fail to recognize and protect the interest thus acquired. When the defendants acquired Fisher’s land, they took it with notice of the fact that Baldock’s ditch was there and used by him to convey water into Baldock slough. They therefore took it with notice of Baldock’s rights -and subject to his interest, whatever it might be. This statement of the case is conclusive against the defendants’ contention.

But if it were necessary to look further, the defense must fail for another reason. When the change was made and the present ditch cut on the line, and that part of Baldock slough abandoned by the plaintiff, it was at the special request of the defendants and for their interest and advantage. They wished to fill up that part of Baldock slough so as to make that part of their land available as an addition to Baker City. They employed the surveyor to survey and mark the line where the new ditch was to be cut, and under their direction the stakes were set on the exact line where the ditch now is. They were bound to know from the facts and circumstances in evidence that this ditch was for the permanent use of the water and not a mere temporary arrangement revocable at their pleasure. In legal effect the plaintiff exchanged his right to use the slough and the part of the ditch at its head for the right of way where the ditch now is. The defendants accepted the slough, and filled it and received whatever advantage that could accrue to their land by platting that part of it, so that a street now passes over what was once a part of Baldock slough. The plaintiff also took possession of the new line agreed upon for his ditch and has used it ever since. The plaintiff thus acquired the right of way where his ditch now is for a valuable consideration received by the defendants, and he cannot be disturbed in the possession and use of the same, and by the transaction the defendants extinguished the plaintiff’s right in that part of the slough.

*83The defendants contend that the contracts with Fisher as well as with the defendants were within the statute of frauds, and therefore the plaintiff acquired no rights that can be recognized because the alleged contracts were not in writing. It may be conceded that each of such transactions was within the statute of frauds and void for that reason, if nothing else had been done, but they were followed by performance on both sides and were thus taken out of the operation of the statute according to well-settled equitable principles, and to allow the statute to be invoked under the circumstances would be to allow the grossest kind of fraud to be consummated under the protection of the statute.

The principle upon which the court below proceeded is affirmed, and a decree will be entered here in accordance with this opinion.