234 F. 522 | 9th Cir. | 1916
(after stating the facts as above).
But it does not follow from the fact that the court adjudicated the respective rights of all the parties to that litigation that others who were not parties to the suit have no right to use the waters of the Silvies river for irrigation. It is evident that Altschul, if he were
“to divert any water from the river when its waters are not so high as to make it necessary or proper by means of the drain ditch to drain surface water from the lands.”
But the court, below reached the conclusion that the appellant had allowed the ditch to remain open, contrary to the spirit of the decree, for the reason that the appellant was responsible for the overfiow of his own lands. The court said: “Pie should have kept the breaks and gaps in the banks of the stream closed.” To that as a legal conclusion we cannot assent. The only limitation placed upon the appellant’s right to use the drain ditch by the terms of the decree is that he shall use it only for the purpose of draining water from the surface of his land, and not for irrigation. The evidence does not show that the presence of the water which made it necessary to use the drain ditch in order to relieve the appellant’s land was caused by the appellant’s own acts further than that through dam 21 water may have come upon the appellant’s land, which was thereafter drained from the surface thereof through the drain ditch. If so, the water came through the Hanley upper ditch, strictly in accordance with the provi
“down to and upon your orator’s said lands as said water has heretofore been wont to flow therein when not interfered with by tho defendants.”.
The decree defined the rights of each of the defendants to obstruct the flow or diversion of water, and it provided that:
“Except as thus permitted, the defendants are perpetually enjoined and rostra ¡nod * * from impeding the flow of any of said water to and upon tho lands of the complainant hereinbefore described, as said water has heretofore been wont to flow thereon when not interfered with by the defendants.”
In view of the history of the river, and the evidence of the overflow of its waters through depressions in the bank from time immemorial, the appellant cannot be held in contempt for permitting the water of the river to flow as it was wont to, flow, or from draining his land by the drain ditch when it needed draining, so long as he did not use the ditch for irrigation.
“He should have kept these breaks and gaps in the banks of the stream closed, or at least in very large measure. The just implications of the decree*530 require this of Mm. He is only given the flood waters to May 5th, and waters pouring through rents in the bank cannot he termed ‘flood waters.’ ”
In the original decree no mention whatever was made of these breaks in the bank, although the evidence now is that they had existed long prior thereto. The decree by its terms provided:
“If at any time, and while the dam of the said W. D. Hanley is open, so that it does not obstruct the flow of the water in said river, and from natural causes the waters of the said east fork of Silvies river shall overflow its banks upon the land of the said W. D. Hanley, or naturally run through either of the ditches of the said W. D. Hanley leading from the dam of the said W. D. Hanley first above described, said defendant W. D. Hanley shall have the use and enjoyment of so much of the said water of said river as may come upon his land in the manner aforesaid, and during such times as the same may run thereon from natural causes, and without any obstruction of the channel of said river.”
Assuming, as it was found by the court below, as and as tire evidence clearly shows, that the breaks in the bank were natural depressions, and that water flowing therethrough ran upon the appellant’s land “from natural causes,” and that the appellant was not by the decree required to prevent or obstruct the same, we are unable to see how, as a matter of law, he can be justly held in contempt for the situation as it exists during the overflow of water through depressions in the bank, the evidence being clear that the appellant did no act to induce such overflow, but, on the contrary, with a view to protect the appellee, and to prevent friction and litigation, diligently endeavored to dose the gaps, and to prevent such overflow.
That there was little or no obstruction from either cause seems to be indicated by the testimony of the appellee’s engineer, who testified that he visited the premises at intervals, and found that the dam was obstructed from the first part of April until the 25th of that month. He testified that he made measurements of the water which was diverted into the appellant’s upper ditch, the first measurements being on April 3d, and the .last on May 3d, and that during the whole of that period the same amount of water was running into that ditch, and that the quantity was nearly 40 second feet. It was not disputed that the obstructions were removed about the 24th or 25th of April. The court below found that if the appellant did not know of the condition of the dam, he ought to have known it, and that he was guilty of inexcusable neglect. The evidence is without dispute that as soon as the appellant received notice that it was claimed that the flow of the water at his upper dam was obstructed, he caused the obstructing brush to be removed, and that this was done by drawing out one of the pieces of willow, whereupon the remainder parted and floated down the stream. Assuming it to be true, as it was found by the court below, that the appellant was negligent in permitting the obstructions to remain in the river for a period of three weeks, we think the conclusion that his negligence was sucli as to amount to a willful contempt of court is wholly unwarranted in law. Although it has not been held by the Supreme Court that in a procedure of a civil nature such as the one here before us, the defendant is presumed to be innocent and must be proved to be guilty beyond a reasonable doubt (Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 444, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. [N. S.] 874), the trend of all the decisions is that the evidence of contempt must be convincing. In California Paving Co. v. Molitor, 113 U. S. 609, 618, 5 Sup. Ct. 618, 622 (28 L. Ed. 1106), Mr. Justice Bradley said:
“Process of contempt is a severe remedy, and should not be resorted to where there is a fair ground of doubt as to the wrongiulness of the defendant’s conduct.”
In Accumulator Co. v. Consolidated Electric Storage Co. (C. C.) 53 Fed. 793, in a proceeding for contempt for violation of an injunction, the court said:
“This proceeding is criminal in its nature and character, and the same rules should govern as in the trial of indictments. The burden of proof of establishing violation of the injunction is upon the complainant, and the defendants are entitled to the benefit of any reasonable doubt.”
So in General Electric Co. v. McLaren (C. C.) 140 Fed. 876, the court held that the burden of proof to establish the violation of an injunction rests upon the complainant, and that the defendant is entitled to the benefit of every reasonable doubt.
The judgment is reversed, and the cause is remanded to the court below, with instruction to dismiss the proceeding.