164 P. 376 | Or. | 1917
delivered the opinion of the court.
We have looked carefully through the evidence to find any substantial contradiction of plaintiff’s claim and find none only in theory. The very competent civil engineer who took levels of the creek, basin, tiling, ram, etc., drew a diagram of the premises, aud testified as a witness in the case, for some reason was not requested to place his opinion in the balance. Other than nonexpert witnesses expressed their views. On cross-examination Mr. Mahr, witness for plaintiff, testified thus in regard to the water of this stream:
“Well, apparently; of course, the way it is now, apparently the water is kind of held back in order to strike that one pipe, there, that top pipe.”
In order to divert water from its natural channel it is ordinarily necessary to construct a dam in the stream at least part of the way across the same. To turn the water into his tiling Mason did as people usually do, but instead of calling the obstruction a dam, termed a portion thereof a cement basin; nevertheless it served the same purpose as a dam and as the evidence clearly shows obstructs the water so as to throw it back onto Dragseth’s land about 300 feet. This is not a great distance, but the result prevents Dragseth from cultivating a small amount of good land and interferes with the successful operation of his ram so as to pump impure creek water to his house instead of pure spring water. Mr. Mason states that there is too much fall
It appears that both parties have made an honest effort to ascertain their rights in the premises and that there has been no willful trespass on the part of the defendant. We believe the ends of justice will be served if each party pays his own costs, therefore neither will be allowed costs. Reversed. Decree Rendered.