25 Or. 559 | Or. | 1894
Opinion by
The defendants contend that the ditch was constructed under a parol license from R. B. Crego, plaintiff’s grantor, and that after its construction the license became irrevocable. The defendant, W. S. Powell, testified that after securing the deed from the defendant Thompson, the construction of the ditch was commenced with Crego’s consent, but that Henry Nichols then owned the tract of land now owned by the plaintiff. In this the witness is
The evidence shows that the defendants have each year since the ditch was constructed, aided the riparian proprietors, including Crego and plaintiff, in removing obstructions from the Little Walla Walla River, and in building dams in the Tum-a-Lum, under a common understanding that in consideration of such aid the defendants were to have the right to divert sufficient water for the irrigation of their lands; that the plaintiff and his grantor have for eight years, with knowledge of the diversion and use of the water, seen and acquiesced in the defendant’s improvement of their farms by means thereof, under a reasonable expectation that the diversion and use would be continued, and from these circumstances it is contended that the plaintiff is estopped from discontinuing the diversion and use of the water for irrigation. Such acqui
In Slocumb v. Railway Co. 57 Iowa, 675, 11 N. W. 641, the facts showed that a small creek touching a corner of plaintiffs land was crossed by defendant’s railroad upon bridges at two places. The defendant filled the bed of the creek at the two crossings, and turned the channel along the side of the railway, so that the bridges were dispensed with, and the creek did not touch plaintiff’s premises. The plaintiff stood by and saw the work of diversion progressing, and it was not until after it was fully completed, at a cost of more than five thousand dollars, that any objection was made. It was there held, upon those facts, that the trial court did not err in refusing to grant a mandatory injunction for the restoration of the stream. In the case at bar there has been more than a mere voluntary acquiescence, or standing passively by, while the defendants were digging their ditch
Reversed.