159 P. 1031 | Or. | 1916
delivered the opinion of the court.
This matter was before us in the case of Brewster v. Springer, 80 Or. 68 (156 Pac. 434), and the law applicable thereto was plainly enunciated therein in an opinion by Mr. Justice Eakin. In the present case the jury has passed upon the facts so that little re
It seems too plain for argument that the allegations of the further and separate answer did not add anything to nor change the denial of defendant that the superintendent approved the claims. If there had been any error or want of approval of the claims by the division superintendent, the defendant could have shown the same under the general denial, and the demurrer was properly sustained. It would have been a simple matter for defendant to have had the division superintendent inform the court and jury by his deposition if there had been a condition or anything lacking in his full approval of the claims. Plaintiff’s proof that they were duly approved was not controverted.
“That on or about the fifteenth day of March, 1915, and while plaintiff was engaged in the active performance of his duties as water-master aforesaid in the vicinity of and east of Prineville, in Crook County, it became and was immediately necessary to supervise the headgates on Squaw Creek, in Crook County, Oregon, and by reason of said condition and necessity an*439 emergency existed in the office of said water-master, and under authority and by virtue of the laws of the State of Oregon, the plaintiff, as such water-master, appointed one "Walt Graham as an assistant water-master of the State of Oregon for Crook County, and said Walt Graham thereupon duly qualified as such acting assistant water-master, and rendered' services as such assistant water-master within said Crook County for a period of seven days, at an agreed compensation of $3 per day.”
In the third cause of action such necessity is shown as follows:
“That on or about the twenty-second day of May, 1915, the plaintiff, as water-master aforesaid, was suffering from a broken arm, and was unable to visit and attend to the ditches in the western part of Crook County and to also attend to and look after the duties in the main office of the water-master at Prineville, in Crook County, and supervise the work of said office, and by reason thereof an emergency existed in the office of said water-master, and plaintiff, as such water-master, under the authority vested in bim as such water-master, appointed one Eoy Rannalls as such assistant water-master at an agreed compensation of $4 per day, and said Roy Rannalls thereupon qualified as such assistant water-master, as required by law, and thereupon and thereafter rendered and performed services as assistant water-master in and for Crook County, Oregon, for a period of 39 days.”
In both instances the facts set forth in the complaint constitute an emergency within the meaning of Section 6620, L. O. L., necessitating the assistance. The compensation claimed was approved by the division superintendent. The demurrer to the complaint was properly overruled.
“If you find from a preponderance of the testimony in this case that the plaintiff kept a just and true account of the time spent by him in the duties of the office of water-master in Crook County, and that he has presented a true copy thereof, verified by his oath, to the County Court, sitting for the transaction of county business, and that same was approved by the water superintendent of water division No. 2, then you will find that to be conclusive upon the County Court, and they must pay the same, provided also that said work was performed upon the call of the water superintendent of division No. 2.”
“When arrangements are not made for employment of a water-master at a monthly rate, as provided in section 6619, the said water-master shall begin his work upon written demand being made upon him therefor by one or more water users. Such written demand for his services shall be attached to his bill for services and forwarded with it to the county commissioners of the proper county. Where the said water-master is employed by the month he shall begin work' and terminate his services as the superintendent of his water division may direct. The division superintendent may, under any condition, call upon the water master for work within his district whenever the neces*442 sity therefor may in his judgment arise”: Wattles v. Baker County, 59 Or. 255 (117 Pac. 417).
The instruction was in strict conformity with the statute, and was not erroneous. The interests of the county are carefully safeguarded in the statute, and it is our guide.
Finding no error in the record, the judgment of the lower court is affirmed. Aeeirmed.