Misek v. O'Shea, 62 P. 491

Misek v. O'Shea

62 P. 491 | Or. | 1900

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. It is contended that the court erred in sustaining the demurrer to O’Shea’s second defense. A counterclaim is one arising out of a cause of action existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had, and, as far as applicable herein, must be connected with the subject of the suit: Hill’s Ann. Laws, §§ 73, 393. If it be assumed that the injury resulting to said defendant in consequence of the plaintiff’s construction of his dam afforded a cause of action upon which a judgment might be rendered, the question to be considered is whether such alleged counterclaim is connected with the subject of the suit. This suit being for a tort, the injury complained of is the wrong, which consists of the deposit of debris upon plaintiff’s mine, and the right, or subject of the suit, is the property which is affected by the alleged trespass : Bliss, Code Pl. (3 ed.) § 126. Thus, in Lovensohn v. Ward, 45 Cal. 8, it was held that the subject-matter of the litigation, in an action of replevin, was the property alleged to have been unlawfully taken by the defendant, who could not, in his answer, allege that the plaintiff had taken from him other property than that mentioned in the complaint, and ask or secure a judgment for its return, although he presented such a case as would have enabled him to recover in an independent action. The injury alleged to have been sustained by *235the defendant does not affect the property described in the complaint, and hence the counterclaim was not connected with the subject of the suit, and no error was committed in sustaining the demurrer.

2. The action of the court in sustaining the demurrer can also be upheld under the rule that one independent trespass cannot be used as a set-off against another consequent upon it: Waterman, Set-Off (2 ed.), § 136; Love-joy v. Robinson, 8 Ind. 399 ; Shelly v. Vanarsdoll, 23 Ind. 543 ; Schweizer v. Weiber, 6 Rich. (S. C.) 159 ; Hart v. Davis, 21 Tex. 411.

3. It is insisted that the court erred in striking out as sham a part of the answer of B. D. Dyer, H. Dyer, and Robert Powell. The motion upon which the order complained of was made is predicated upon the ground that the part of the answer assailed was sham, frivolous, irrelevant and redundant. The averment that plaintiff leased his mine to said defendants, in consideration of which they dug a ditch, constructed flumes, and put in sufficient pipe to operate it, was not false in fact or pleaded in bad faith, and therefore was not sham : Foren v. Dealey, 4 Or. 92 ; The Victorian, 24 Or. 121 (41 Am. St. Rep. 838, 32 Pac. 1040). Our statute, however, provides that, if irrelevant or redundant matter be inserted in a pleading, it may be stricken out on motion of the adverse party: Hill’s Ann. Laws, § -85. The matter stricken out being clearly irrelevant and redundant, no error was committed in this respect.

4. It is claimed that defendant’s predecessor, having deposited tailings upon that part of the public domain now embraced within plaintiff’s mine, thereby appropriated the premises for that purpose, and that plaintiff took his mining claim subject to such prior right. Such a rule seems to have been adopted in California (Jones v. Jackson, 9 Cal. 237 ; O'Keiffe v. Cunningham, 9 Cal. 589); *236but we cannot yield our consent thereto; for no use of the premises, however long continued, can be adverse to the United States, and, as the defendant has not deposited his tailings on the plaintiff’s mine for a period of ten years since the United States parted with its title thereto, no claim to continue such use can be predicated thereon: King v. Thomas, 6 Mont. 409 (12 Pac. 865); Mayer v. Carothers, 14 Mont. 274 (36 Pac. 182).

5. It is contended that the evidence shows that the defendant had a license to deposit debris on the mine below his, and that, acting upon the faith of such permission, he, with plaintiff’s knowledge, expended large sums of money in purchasing and improving his property, in consequence of which the license had become irrevocable; and, this being so, the court erred in enjoining him from continuing the use of said premises. O’Shea does not allege that any consideration was paid for the license relied upon, nor does he aver any facts from which an estoppel could be implied, but, the cause having been tried on such theory without objection, the question will be considered. O’Shea, as a witness in his own behalf, testifies that before purchasing his mining claim the plaintiff told him he had no objection to his having an outlet across his land for dumpings and drainage, saying to the witness, “You can dump where you please;” that, having secured such permission, and relying thereon, he purchased his mining claim, and expended large sums in improving his property, which he would not have done except for such license. Plaintiff in his testimony makes a general denial of the license so attributed to him.

But, if it be admitted that he consented to the defendants’ use of his premises as stated, we do not think the character of the work done in pursuance thereof sufficient to render the license irrevocable. The evidence fails to show what sum the defendant paid for his mine, *237or for the ditch or flume constructed thereon, and, for all that appears from an inspection of the transcript, he may-have been amply remunerated for such outlay by the gold realized by operating the mine. If the defendant, as he testifies, could deposit debris on the plaintiff’s mine where he pleased, the result would necessarily be that he could appropriate the surface of the servient estate, if he chose to exercise the right upon which he insists. This court has adopted the rule that if a party, relying upon the faith of an express parol agreement, make permanent valuable improvements upon an estate, which may inure to the advantage of the owner thereof, the license upon the faith of which the improvements are made cannot be revoked to the prejudice of the party executing it: Curtis v. La Grande Water Co. 20 Or. 34 (23 Pac. 808, 25 Pac. 378, 10 L. R. A. 484); McBroom v. Thompson, 25 Or. 559 (42 Am. St. Rep. 806, 37 Pac. 57); Garrett v. Bishop, 27 Or. 349 (41 Pac. 10); Hallock v. Suitor, 37 Or. 9(60 Pac. 384). It appears from the the transcript that tailings deposited along the banks of the creek have been worked over several times, yielding sufficient gold to pay for the labor thus expended, so that it may be reasonably inferred that plaintiff would derive a benefit from the deposit of which he now complains ; but inasmuch as the debris does not constitute a permanent improvement, and is liable to be carried out by the first freshet in the stream, we think the license, if it be conceded that it existed, was revocable.

The defendants B.D. & H. Dyer failed to establish a license to deposit debris from O’Shea’s mine on plaintiff’s premises; for, notwithstanding they settled upon the terms of such an agreement, for which they paid a consideration, the contract, which was to be in writing, was never executed, each party refusing to subscribe his name to a memorandum prepared by the other. The decree having recognized the defendants’ prior right to the use *238of the water in the right fork of said creek, it is unnecessary to consider the contention of defendants’ counsel respecting such right, or to comment upon the effect of an adverse use of the waters thereof. The defendants assign other errors in the printed abstract, but, not having been insisted‘upon in their brief, they are deemed waived and the decree is affirmed. Affirmed .