177 P. 956 | Or. | 1919
Lead Opinion
Defendants’ first proposition is, that their demurrer to the complaint should have been sustained, for the reason that no facts are therein alleged disclosing any irreparable injury. In support of this contention, they rely upon Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724), and Wolfer v. Hurst, 50 Or. 218 (91 Pac. 366). These cases appear to sustain the position maintained by defendants, but in Chapman v. Dean, 58 Or. 475-479 (115 Pac. 154, 155), we find this language:
“The principal question in the case is whether injunction will lie to prevent continued trespass. Originally the rule was that injunction would not lie in the first instance prior to a judgment at law to prevent trespass, unless the threatened injury was such as would cause permanent and irreparable injury to the freehold, and as removing ores from mines, or cutting down choice shrubbery, or destroying dwelling-houses or the like, or in the further instance that the defendant was insolvent: Smith v. Gardner, 13 Or. 221 (6 Pac. 771, 53 Am. Rep. 342); Mendenhall v. Harrisburg W. P. Co., 27 Or. 38 (39 Pac. 399); Garrett v. Bishop, 27 Or. 349 (41 Pac. 10); Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724). But later authorities establish the doctrine that, where the trespass is continued, made up of successive acts, each comparatively unimportant in itself, and the threat and intention to continue is manifest, equity will enjoin the same, for the reason that each separate trespass forms a separate cause of action. * * In this case the plaintiffs claim no damages, but only seek to prevent the continuation of the trespasses of which they*243 complain. The authorities are numerous that equity will entertain their bill for that purpose, especially when persistent invasion of plaintiffs’ premises would eventually work out the establishment of an easement in favor of defendants.”
The doctrine thus announced has been approved by this court in Stotts v. Dichdel, 70 Or. 86 (139 Pac. 932); Central Oregon Irr. Co. v. Whited, 76 Or. 255 (142 Pac. 779, 146 Pac. 815); Talbot v. Joseph, 79 Or. 308 (155 Pac. 184); and Barnes v. Esch, 87 Or. 1 (169 Pac. 512).
These authorities also dispose of defendants’ second contention, which is, that there is a failure of proof of any irreparable injury.
"We come, then, to a consideration of the merits. The testimony is conflicting and, in many particulars, vague and indefinite, and an extended discussion is unnecessary, and wholly unprofitable, but after a painstaking study thereof, we find that in the fall of 1908, while the defendant Belding was the owner of the N. W. % of section 8, T. 18 S., R. 47 E., W. M., some of the people owning lands lying south of that tract organized the plaintiff corporation for the purpose of providing drainage from their lands, of the excess waters resulting from irrigation. The topography of the vicinity was such that it became necessary for the corporation to construct a ditch across Belding’s land, and since that land sloped gently from the east and west toward the center of the tract, and thence in a northerly direction, they approached Belding with a view to securing his co-operation as a stockholder, a proposition which he declined, because he already possessed a drainage system which he regarded as sufficient. However, he gave plaintiff permission to enter upon his lands, and enlarge his ditch across his premises, with the understanding that he would con
We are not concerned with the question regarding defendants ’ claim of a prescriptive right to dump their waste water in the sink on section 5, for that subject is not an issue, nor are the owners made parties herein. 'Certainly the evidence does not disclose any prescriptive right in any of the defendants to use plaintiff’s ditch, and whatever right they may have had by virtue of the arrangement with Belding, re
Affirmed.
Denied February 25, 1919.
Rehearing
On Petition for Rehearing.
(178 Pac. 796.)
Appellants file petition for rehearing. Denied.
Mr. Ralph W. Swagler, Mr. William H. Brooke and Mr. G. McGonagill, for the petition.
Mr. William E. Lees, contra.
In Banc.
The petition for rehearing presses upon our attention a construction of the evidence which the defendants claim shows that they have a prescriptive right superior to that asserted by the plaintiff for the disposal by drainage of the surplus water in their irrigation operations. A consideration of jhe pleadings, however, renders it unnecessary to enter upon a new discussion of the testimony.
The plaintiff says in substance that it has constructed a drainage ditch which it describes, and that without any right thereto the defendants have persisted in using it as a depositary of the drainage from their lands, against the will and consent of the plaintiff, whereby the plaintiff is damaged. The defendants deny all the allegations of the complaint. They
Under their denials, the defendants could show that they did not do the acts complained of by the plaintiff. If they claimed any right to use the plaintiff’s ditch they should have pleaded it. In short, so far as the pleadings show, the defendants do not claim any right in the water-way of the plaintiff; neither does the plaintiff assert any right in the natural water-way used by the defendants. On the trial of the general issue, however, there was evidence to support the finding that the defendants were discharging their drainage into the plaintiff’s ditch. Hence the injunction was properly granted and the motion for rehearing must be overruled.
Affirmed. Rehearing Denied.