74 P. 325 | Or. | 1903
delivered the opinion.
The plaintiff corporation is the owner of a placer mine on Thorn Gulch, near Sparta, in Baker County. The defendant F. W. Tallmadge owns a mine at the head of the gulch above the plaintiff’s. He is also the owner of a water right and ditch known as the “ Sparta Ditch,” through which water is conveyed from Eagle Creek to a point above, but near, the Town of Sparta. Between the Sparta ditch and the head of Thorn Gulch is a low depression, owing to which water from the ditch could not be used for mining purposes on Thorn Gulch at the time the contract in controversy was made. In July, 1897, the plaintiff sought to obtain water from defendant F. W. Tallmadge for use at its mine, and applied to him to extend his ditch so as to supply it with water; but, as he did not have funds available for this purpose, a written contract was entered into between him and the plaintiff, wherein the latter agreed to furnish all the labor, money, and material necessary to lay a sixteen inch steel pipe line from a point at or near the reservoir on defendant’s ditch across the low land to the opposite ridge of hills near the head of Thorn Gulch, a distance of 3,650 feet, and in payment therefor the defendant agreed “to deliver there, through and by such appliances as he may adopt, at least two hundred full miner’s inches of first or second water to and at the placer mines of” the plaintiff, “and to maintain said supply of water at said point continuously so long as water will flow in said ditch,” until the plaintiff should be fully repaid in water for the cost and expense of constructing such pipe line at the rate of $20 a day for each day of 24 hours.' The
Farlaman, who was the manager of the plaintiff company from July to November, 1897, testified that the water as it came down to the plaintiff from the defendant’s mine was filled with mud, sand, and gravel just as it came from the mine and was of very little use to the plaintiff; that it filled the plaintiff’s reservoirs and ditch so full that they were of no use at all; that it kept two or three men busy all the time shoveling the sand from the ditch; that the water was two-thirds sand; that he spoke to the defendant about it several times, and he promised to remove the trouble, but never did; that, as delivered, the water was of no value to the plaintiff. Banfield, who was superintendent for the plaintiff in 1898, and in charge of its mine, says that during that season the water was delivered during the first week clean, but after that it was used by the defendant, and the tailings and débris from his mine were carried down to plaintiff’s to such an extent that it would fill the ditches so that the water ran out over the ground instead of down the ditches; that it also filled the sluice boxes and penstock, and cut the giant to pieces. George G. Sears, president of the plaintiff company, testified that the water as it came down to plaintiff’s mine was about
It is settled law that, where an article or commodity is to be made or supplied to a purchaser for a particular purpose known to the seller, there is an implied warranty that it shall be reasonably fit and suitable for the purpose intended : Benjamin, Sales (7 ed.), pp. 633, 686 ; 2 Schouler, Personal Prop. § 346; 10 Am. & Eng. Ency. Law (1 ed.), 149 ; Poland v. Miller, 95 Ind. 387 (48 Am. Rep. 730); McClamrock v. Flint, 101 Ind. 278 ; Bushman v. Taylor, 2 Ind. App. 12 (28 N. E. 97, 50 Am. St. Rep. 228). Now, the water which Tallmadge agreed to deliver to the plaintiff was to be used for certain purposes, known to him at the time he made the contract, and therefore the law implies a warranty on his part that when delivered it shall at least not be unfit for the required purpose on account of his own conduct. The uncontradicted testimony shows that the
There is a contention made that the débris which came down with the water to plaintiff’s mine did not come from the mining operations of the defendant, but was gathered by the water as it passed down the gulch after leaving his mine. The evidence on this question is overwhelmingly in favor of the plaintiff, and there can be no reasonable doubt on this record as to the true facts of the matter. The evidence shows that for about one week, while the defendant was not mining, the water came down to the plaintiff’s mine clear and in condition for use, but as soon as he began operating his mine it was so charged with sand, dirt, and mining débris that it could not be used for mining purposes.