*1 103 31, 1973, Argued September 10, December affirmed as modified February by opinion 14, 1974 petition rehearing denied Appellants, v. KROO JEWELL et et ux, ux, Respondents. P2d
517 657 P2d 1305 *2 argued Hedrick, Howard the cause for Portland, B. appellants. him the were Pel- Hedrick, on briefs With McCarthy, Portland. C., lows P. & Layman, Newberg, argued George the cause for H. Allyn respondents. him on the brief was E. With Newberg. Brown,
HOLMAN, J. adjoin- couples two married are
Plaintiffs, injunction damages sought ing an and landowners, property came onto of defendants because destroyed plaintiffs a rock and earthen dam Jewell and irrigation water for used a source which was complained, plaintiffs Defendants cross Mitzkowski. seeking easement for their a water benefit to have de- plaintiffs enjoined to have and from in- valid clared terfering completion of a concrete dam with which building replace were rock and defendants Only property. plain- on earthen appealed a from decree for defendants. tiffs Jewell a tract land owned The Jewells spring irrigation there was a that furnished garden surrounding a lawn and a residence thereon. predecessors granted One of the Jewells’ in interest had predecessors, to one of defendants’ in interest the adjacent piece property up gal- to use on an to 500 day spring lons of water a from the to be secured through pipeline. por- inch The Jewells sold that % property upon tion of their which the residence, lawn, garden and existed to the Mitzkowskis and retained that portion spring upon which had the it. The extent of the Mitzkowskis’ to the use of the water is not clear from the deed to them from the but Jewells, continued to use the water as the had Jewells used it. spring approximately was in a ravine 30 to 35 feet from the border of the defendants’ was the headwater for a small stream which ran through years a defined channel. For the ravine had been blocked a rock and earthen dam about three high spring pipeline feet which retained the water. A *3 pond ran from the thus created to the Mitzkowskis’ garden. house and through attorney,
The defendants, their contacted arrange improvement the Jewells in an effort to Jewells, prefer dam but were told that the would purpose seeking it left The be alone. defendants’ in improvement of the dam was exercise of their water right which had not theretofore been undertaken. rejection, rough
After defendants bulldozed a roadway through some brush from their line spring, place to the tore out the old dam and in its built higher. They a concrete one which was about a foot pipe premises. installed a from the dam their to After compacted this was done but before earth the was at against the ends of the dam and backfilled its rear, 106 get were the Jewells to off their
defendants ordered property, litigation . and this resulted. principal of de-
The issue concerns the self-help degree in which fendants of to exercise the original they indulged. The contend that the Jewells adequate premises de- was to serve both and that prop- upon to enter the fendants had no erty replace to the dam or to the and to build road They further contend that consent. dam without their garden was to the and lawn reduced the flow of water con- hand, the other defendants the new dam. On by- water retained the old dam tend that the amount of premises inadequate wholly to serve both and that complete dam, the if are allowed defendants impaired. not Mitzkowskis’ use will be may enter the dominant The owner of estate anything doing purpose estate for on the servient proper reasonably 'exercise of his Property (3d Tiffany, § 810 346-51, Real easement. 3 (1873). Uglow, Thompson 1939); 4 v. ed reasonably were of the defendants the acts Whether necessary or of their easement whether exercise question self-help bounds is a these exceeded their dependent the circumstances. which is fact concerning is these circumstances The evidence inspected prem- judge conflicting parties while testified and who observed ises position this than is court to resolve much better is in a try Although the case anew, we conflict. such judge weight. trial afforded determination 145, 148, 110, 504 P2d Korman, 264 Or v. Evans not cause us to (1972). does believe that evidence *4 materially damaged by the con- land the Jewells’ through 35 feet of brash or a road struction larger, substitution of a dam for concrete a smaller, injurious rock and one was to the earthen Mitzkowslds’ supply poses or an undue burden on the Jewells’ land. despite just
We realize what that, we have said, right they defendants had no to take the action did un- less it was to the exercise of their easement. present propose Under the we circumstances, do not judge’s to overrule the respect trial decision in this necessity conflicting. when the evidence of the We find required that the demands made the water larger physical changes wrought reservoir and that the on the Jewells’ were consistent with and neces- sary for though the satisfaction of such demands, greater entry notice of defendants’ and intentions would have been desirable and courteous.
The Jewells next contend defendants had no right to the belongs use of the water because it public provisions in accordance with the of OES 537.110 granted permission had never been appropriate impound State to or it or to alter the im poundment required by urged OES 537.130. It is against public policy that it is to allow defendants to right they lay exercise the to which claim because such contrary exercise would be to law.
The exercise of such a
is not unlawful as
original grantors
between the
of and their
grantees
respective
or as between their
successors in
Substantially
interest.
the. same issue was raised in
Fitzstephens v. Watson et al, 185,
(218 (2) rights 197-98); such are transferable (3) riparian the transferred, if so owners; the and grantor against estoppel his acts the and transfer as an grantor sub- if such or his successors successors, even sequently appropriate in with the water conformance statutory (which here). is not the case the scheme the is an issue as whether defendants’
There original superior easement or inferior the grantor’s right of the to use of the water retained by spring, right being the which is now exercised that the assume, decide, Mitzkowskis. We will but not right in the to the use of the Jewells have an interest right spring in the addition to the transferred water of by appeal, did not which Mitzkowskis, them upon appeal. raise issue interest entitles them to this right decreed that the defendants’ was The trial court original grant predeces superior. the predecessors the follows: sors to defendants’ “Notwithstanding prior superior G-rantor’s and spring water of said to the use of the op- irrigation purposes, including the and domestic prune rights hereby eration of a are drier, assigns, himself, G-rantor, his heirs and reserved to object by Grantees, will not to the diversion their assigns, quantity of water from heirs spring required for domestic use Grantees said (500) gallons Five Hundred a and not to exceed day.” (Emphasis
added.) ambiguous. Obviously, grant is The first word “Notwithstanding,” grant, is inconsistent with the hereby rights “which are reserved to himself.” words prior right grantor’s was to intention retain If “subject words to” would water, to the use of place “Notwithstanding.” normally in used have been impres- a it is when read as our whole, Nevertheless, grantor prior right sion that the intended to reserve a purposes to the use of the water for the enumerated interpretation and that this is the more reasonable ambiguous language. We hold that court ruling gallons erred in that defendants’ to 500 day prior charge upon spring. was a the water of the is affirmed The decree of the trial court as modi- fied.
ON PETITION FOR REHEARING G-eorge Layman Allyn H. Newberg, E. Brown, petition. for the appearance
No contra.
HOLMAN, J. inviting rehearing, petition filed a for Defendants opinion change part determined that of onr ns to right priorities. invitation. decline the We onr attention Defendants also call to by originally days conrt to com- the trial decreed plain- long passed plete becanse since the dam have by opinion appeal. was set onr additional time tiffs’ No Any completion in the evidence defendants. to allow completion concerning for the time record applicable the difference becanse would not now be year water flow. and the resultant of the in the time agree being npon parties’ able to the absence of In talcing after the of testi- conrt, we direct it, completion period mony, for set a defendants. rehearing petition is denied.