83 P. 843 | Or. | 1906
delivered the opinion.
The plaintiff, as a witness in his own behalf, testified, among other things, that he had lived on Hale Creek and in the house damaged by the flood about 35 years; that the stream dried up about the 4th of July each year, and remained dry until the winter rains, except during storms in the summer time; that the country it drained for four or five miles up the stream was steep and rugged, and was visible from the railroad track; that during the time he had lived on the stream he had seen a great many storms and high waters; that he had seen the stream in harvest dry, and within two hours after a storm came up the water would be knee deep from his yard fence to the hills on the
He was also permitted to testify, over defendant’s objection, that before the fill was made by the defendant company a man, who seemed to be spokesman for a party who had surveying instruments and were making measurements at the place where the fill was subsequently made, inquired of him as to his knowledge concerning the quantity of water that came down the gorge or ravine at the railway crossing, and he told him that he had seen it hip deep over a space 50 or 60 feet wide at that place, and that he thought it would take a “pretty big culvert, not less than 10 feet”; that he did not know whether the party was an official of the road or not; that he afterward had a conversation with parties who were putting in the fill and whom he supposed were working for the railroad company, and told them that he did not think the drain pipe used was sufficient to carry the water. Based upon this testimony, the court instructed the jury that if plaintiff informed the employees of the defendant before the fill was made that the water had at times run hip deep through the gulch, or advised its agents that the pipe or conduit was not large enough, before it was put in place, they might consider such matters in determining whether the defendant used ordinary care in fixing the size of the drain
The question has never been decided in this State. The court expressly disclaimed doing so in West v. Taylor, 16 Or. 165 (13 Pac. 665). Nor do we deem its consideration necessary at this time. The waters which caused the injury to the plaintiff were not surface waters, but the flood waters of a natural stream. “Surface water is that which is diffused over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface water”: Crawford v. Rambo, 44 Ohio St. 282 (7 N. E. 429). When such water has found its way into a natural stream or water course, and mingles with the waters thereof, it becomes as much a part of the stream as any other particle of water in it, and ceases to posses^ any of the qualities of surface water. And the mere fact that for the time being the channel of the stream is no.t sufficient to carry all the water does not change the rule, so long as the water forms one continuous body and flows in the course of the ordinary channel of the stream. As said in Crawford v. Rambo, 44 Ohio St. 282 (7 N. E. 429): “It is difficult to see upon what principle the flood waters of a river can be likened to surface
The question- has been ably and exhaustively considered, in his usual clear and masterful manner, by Mr. Justice Lumpkin, in O’Connell v. East Tenn. Ry. Co., 87 Ga. 246 (13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246), and his conclusion is that whether the flood waters of a stream are to be deemed as part of the stream or mere surface water depends upon the configuration of the country and the relative position of the water after it has gone beyond the usual channel. “If the flood water,” he says, “becomes severed from the main current, or leaves the stream never to return, and spreads out over the lower ground, it has become surface water. But, if it forms a continuous body with the water flowing in the ordinary
There are some other assignments of error in the record, but, as they need not arise on a new trial, it is not necessary to consider them at' this time. Judgment reversed, and new trial ordered. Reversed. -