136 P. 29 | Or. | 1913
delivered the opinion of the court.
It is not alleged in the complaint that the plaintiff or its predecessors in interest made a prior appropriation of the water of the McKenzie Eiver sufficient to transport in the summer in the channel of that stream, and in the waterway connected therewith, sawlogs to its mills at Coburg. It will be assumed, however, from the averment that the river had been used for that purpose by the plaintiff and its predecessors 30 years, which period antedates the defendant’s diversion, that facts are set forth in the complaint adequate to show a prima facie right in the plaintiff to the relief sought, if application therefor had been seasonably made.
Where an exclusive right to furnish a city with water had been granted for a definite time, before the expiration of which, and in violation of the privilege originally conferred, another party pursuant to a charter provision also began supplying water, it was ruled in a suit to prevent the latter service that, since a restraining order might cause serious harm to the people of the city, an injunction pendente lite should be denied: Stein, Exr., v. Bienville Water Supply Co. (C. C.), 32 Fed. 876. So, too, where the owner of a water-power without objection and without the assessment or prepayment of damages suffered a city to erect waterworks designed to be fed from the same stream, it was determined that he could not have an injunction against the use of the water on the ground of the injury to his power: City of Logansport v. Uhl, 99 Ind. 531 (50 Am. Rep. 109).
In the case at bar, whether or not the furnishing of illumination is such an employment of electricity as
As it is possible that the plaintiff may desire in an action at law to establish its alleged right to a continuous flow in the natural channel of the water of the river and to recover damages for the diversion, the decree should he modified so as to dismiss the suit without prejudice, and it is so ordered.
Dismissed Without Prejudice.