60 P. 384 | Or. | 1900
delivered, the opinion.
This is a suit to enjoin the defendant from maintaining and operating a dam constructed by him on plaintiff’s premises in Polk County, and to restrain him from interfering with a water power thereon. It appears that La Creole Creek flows in an easterly direction through said premises, and empties into the Willamette River. The land drained by the headwaters thereof is covered with valuable timber, which, cut into saw logs and put into the creek, can only be floated therein in its natural stage during the wintér freshets ; but by means of dams provided with sluiceways of sufficient capacity, and so arranged as to permit logs to pass through, water can be raised at all times, except in the summer, to a sufficient height, so that when suddenly liberated it flushes the creek, carrying the logs to market. Plaintiff’s husband, about 1867, built a sawmill on the premises now owned by her, which was operated by water power secured from said creek ; and, having blasted rocks and removed obstructions from the bed thereof, he was able to supply his mill with logs, from which he manufactured lumber, and upon his death plaintiff succeeded to his estate in the premises, and continued the operation of the mill. The defendant about 1896 built a sawmill on said creek below plaintiff’s mill, and, finding the head of water raised by two dams constructed by him insufficient to float logs thereto, constructed a dam in the creek on plaintiff’s land, and is operating the same