198 P. 923 | Or. | 1921
It will be noted that the lease was executed on November 11th, and that the complaint was filed on August 21, 1919. By its terms, defendant agrees that he will farm in a good and husbandlike manner during the period of the lease; that he will properly care for the alfalfa now sown and growing and spring-tooth it and carefully irrigate it according to good husbandry in the locality; at the proper time he will cut and properly stack it at his own ex
The defendant agrees that in spring-toothing, he will reseed such portion of the lands as are thin or in his judgment need reseeding; to keep up all ditches and keep them free from weeds and construct such new portion as may be necessary. Each year he will perform such work upon the Allen ditch as the plaintiff is obliged to perform to hold the ownership, the same being one fifth. He will keep the water on the pasture to hold the water level, the main ditch shall be large enough to carry all of the waters of the Allen ditch; that pasture to be divided equally and any pasture sold divided equally; no stock shall be pastured upon the alfalfa in the fall of any year after it has been eaten down and none shall' be pastured after the first of March; to keep all outside fences in good repair, plaintiff to furnish necessary materials; plaintiff to have space in the bam for herself or feeder and reserve the right to feed her portion of the hay upon the premises; defendant to have the use of farm machinery and hay machinery and keep it in repair; property not to be subleased or any sale or assignment without written consent; plaintiff to have the right to enter at all reasonable times.
For a cause of suit and as damages for a violation of the lease the plaintiff alleges that defendant “has failed to farm and care for the said premises in a good and husbandlike manner and has failed to irrigate carefully the alfalfa growing thereon”; that he has used excessive waters in irrigation and has caused seepage to raise and bring the alkali to the surface; that the injured land amounts to about fifteen acres and that all of it is damaged by excessive water; that
“that on account thereof the said salt grass meadows have been injured in a considerable sum of money and plaintiff is damaged thereby, and particularly on account of said default and violation, the plaintiff’s inchoate water right is placed in jeopardy and will be lost to plaintiff unless plaintiff can enter upon the said premises and rectify the injury.”
In paragraph 17 it is alleged that the defendant failed to construct the irrigating ditches and instead of building the one described in the lease, he enlarged a lateral and that such enlargement was a distinct injury to the land of the plaintiff for the rea
“The evidence, it is true, is conflicting as to both of these matters, but the trial court resolved these conflicts in the plaintiff’s favor, as it was entitled to do, and with its findings and conclusions in so doing we are not at liberty to interfere.”
“Where the neglect and omissions of the defendants to perform their obligations under a lease resulted in waste, which, if permitted to continue, must eventually result in the ruin and destruction of its subject matter to the irreparable damage of the plaintiff; held, that equity would interfere and cancel the lease to prevent such waste and destruction.”
That grew out of a lease of a bearing orchard, which required skill, constant care and attention and it appeared from the evidence that the defendant went to California and the court held that through defendant’s neglect, waste was committed which tended to impair and destroy the value of the orchard itself and that it became infected with insect pests “which seriously injured the healthful condition of the trees, killing some and causing others to go into decay.”
Affirmed as Modified.