190 P. 349 | Or. | 1920
For fifty years the plaintiff and his predecessors in interest have been the owners of a tract of land through, which the Luckiamute River flows, and upon which, during all of that time, there has been maintained and operated a grist-mill, for which the power is obtained by a dam across the river, using the waters of the stream, by means of turbine wheels, to drive the machinery of the mill. For twenty years past the stream has been used also by the defendant and others for floating logs and other forest products. In this connection the defendant maintains two dams across the river, one being about twelve miles above the grist-mill and the other about sixteen miles above the same. The upper one of these dams has not been used by the
“No person’s property shall be taken by any corporation, under authority of law, without compensation being first made or secured in such manner as may be prescribed by law.”
Plaintiff’s attack upon the validity of the statute is directed to the provisions therein which permit the use of splash-dams and the entrance of loggers upon riparian lands for the purposes of reclaiming stranded logs, etc., without providing for the prior assessment and tender of compensation to the owner therefor.
The defendant concedes, of course, that neither the state nor the defendant as its agent, has the right to take private property, even for a public use, without
‘ ‘ But a stream which is not such a highway cannot be made one by the use of dams or other artificial means, without first acquiring the rights of riparian proprietors : 1 Farnham, Waters, § 139. Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream with no burden or hindrance imposed by artificial means. (Citing a number of cases.)
“Dams, dikes, embankments and the like may be constructed in or along floatable streams to facilitate their*736 use (Union Power Co. v. Lichty, 42 Or. 563 (71 Pac. 1044), but not to the extent of injuring the riparian proprietors by retarding the flow of the water or sending it down in increased volumes to his injury or at times when the stream would not otherwise be navigable. And this rule is not changed by the fact that a stream cannot be successfully used for logging purposes without such artificial aids to navigation on the ground of necessity. ’ ’
Modified. Decree Entered. Eehearing Denied.