52 P. 565 | Or. | 1898
Lead Opinion
delivered the opinion.
This suit was instituted for the purpose of enjoining and restraining the defendant from trespassing upon and interfering with plaintiff’s use of certain premises and property, consisting of a flume and right of way over certain lands upon which the same is constructed. Plaintiff obtained a temporary restraining order, but, upon the filing of the answer containing an alleged counterclaim and prayer for an injunction, the order was rescinded, and plaintiff was temporarily enjoined instead. In his separate defense, by way of counterclaim, the defendant- alleges, in substance: That the Latourelle Falls Wagon Road Lumber Company was on October 5,1889, the owner and in possession of a certain flume extending from Brower to Latourelle Falls, in Multnomah County, Oregon, being the same property mentioned in plaintiff’s complaint, and, being such owner, leased the same by contract of that date to Brower & Thompson,
It is then alleged that plaintiff became the owner of the flume property through purchase of a sheriff’s
The cause was referred' to ITon. M. L. Pipes, to settle certain questions arising under the pleadings, and to take the testimony, and report his findings of fact and law thereon. At the opening of the trial, the defendant interposed a motion to dismiss the plaintiff’s complaint, and for judgment on the pleadings, which motion had combined with it a demurrer to said complaint. Before said motion or demurrer was passed upon by the referee, the plaintiff filed her written consent that the motion to dismiss should be allowed, and the referee found, as a conclusion of law* that the same ought to be sustained. The referee then heard the testimony of defendant in support of his counterclaim, and that of plaintiff in opposition thereto, and finally dismissed both the complaint and the counterclaim. The referee’s report was affirmed by the court below, and the defendant appeals.
The motion to dismiss the complaint, in view of plaintiff’s written assent thereto, was properly allowed by the referee, but a more serious question arises touching the effect of such dismissal. The plaintiff contends that it carries the whole case out of court, while the defendant insists that the counterclaim contained in his answer stands as a suit against the plaintiff, and that he is entitled to be heard upon it, and to the affirmative relief prayed for. Under the code system prevailing in this state, a counterclaim may be pleaded in equity as well as in law. It must be
The sufficiency of the statement of facts constituting the counterclaim was not questioned by the plaintiff, and trial was had under the issues tendered by the reply thereto; and this brings us to a consideration of the cause upon the evidence adduced by the parties, and, as preliminary thereto, it becomes necessary to determine the nature of the agreement under which the defendant claims to have entered, and by virtue of which he claims to hold possession of the flume. He insists that it is a lease; that he is rightfully in possession as a tenant, and that plaintiff is the owner of the reversion only without right of entry. The two contracts referred to in the answer were offered in evidence. Both were made up®n the
The other contract, which is the No. 3 here alluded to, purports upon its face to be a lease of- the flume to the lumber company (Brower & Thompson). By the terms thereof, the flume company covenants and agrees
Although the agreements of the parties are contained in two contracts, they were intended for the accomplishment of the same purpose. That purpose was to require the flume company to transport all the output of the lumber company’s mills through and
Some time in April, 1895, O. N. Denny, as receiver of the Portland Savings Bank, while holding the sheriff’s certificate of sale of the flume property, authorized the defendant in writing to enter into possession and to preserve the same from trespass and injury. The defendant accepted the trust, and entered by virtue of such authorization. While so in possession he applied to the receiver for permission to transport over said flume 500,000 feet of cedar lumber for which he had an order from Indianapolis, Indiana, and it was agreed between them that in consideration of the defendant’s payment of the schedule of rates as fixed by the contract he should have the privilege of so transporting such lumber. The order was accepted and the lumber manufactured in reliance upon such understanding with the receiver. When, however, about 100,000 feet had been transported the receiver sold and transferred the sheriff’s certificate of sale to the plaintiff and directed the defendant to turn over the property to her. This he refused to do, and plaintiff thereupon sought to deter and restrain him from further use thereof. It appears conclusively that the defendant was largely indebted to the flume company for the transportation of lumber through and over said flume, and for this reason the flume company had refused longer to operate said flume or to permit
Assuming, however, that the parties to this suit stand in the same relations to each other as did the flume company and Brower & Thompson originally under the contracts, the defendant is not entitled to the permanent relief prayed for because of his arrearages in payment for transportation of lumber, etc., over said flume by the flume company. If he would have the contract enforced in the particular which he demands, he must do the things which are required of him by the terms of the contract. This seems to us to be equitable, especially in view of the fact that the lumber company is insolvent, and the defendant stands in the capacity of its assignee for the benefit of creditors. The decree will therefore be that plaintiff be enjoined from interfering with the defendant in fluming the said balance of 500,000 feet of cedar lumber, but that the further relief prayed for be denied.
Modified.
Rehearing
On Rehearing.
delivered the opinion of the court.
This is a motion to amend certain findings by this court, and the special purpose thereof is to have it shown that the issue made by the reply touching the existing validity.of the fluming contracts entered into between the Latourelle Falls Wagon Road & Lumber Company and Brower & Thompson was not passed upon by the court, and therefore has not become res adjudicata as • to any further proceedings between the parties to said contracts or their assigns for the enforcement of any rights thereby acquired. It will be seen by reference to the opinion in the main case that the plaintiff acquired title to the flume through certain foreclosure proceedings, and one contention was that since neither the defendant or his predecessors in interest under the contracts were made parties to the foreclosure his rights were not foreclosed, assuming that the contracts constituted a lease, and that thereby he acquired an interest in the flume as real property. But the contracts were construed not to constitute a lease, and therefore that the foreclosure carried the title to Maffett unaffected by the contract relations between the flume company and the lumber company. We assumed, for the sake of argument, so as to dispose of the case upon premises most favorable to defendant’s contention, that the parties to this suit stood in the same relation as the original parties tv
Motion Overruled.