175 P. 855 | Or. | 1918
The defendant contends that it is liable only for consequential damages based upon its negligent and careless operation of its works and in effect, at least, not for the original invasion of the plaintiff’s premises. It cites in support of this doctrine, Fleming v. Lockwood, 36 Mont. 384 (92 Pac. 962, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, 14 L. R. A. (N. S.) 628), Billings Realty Co. v. Big Ditch Co., 43 Mont. 251 (115 Pac. 828), Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14 (81 Pac. 785, 1 L. R. A. (N. S.) 596), Lisonbee v. Monroe Irrigation Co., 18 Utah, 343 (54 Pac. 1009, 72 Am. St. Rep. 784), and Boulder v. Fowler, 11 Colo. 396 (18 Pac. 337). All of these cases proceed upon the theory that the defendant had lawfully obtained the right to construct and operate the artificial waterway it was using and consequently was liable only for negligence in its management. In Northwestern Transportation Co. v. Chicago, 98 U. S. 635 (25 L. Ed. 336), it was held that the city was not liable for necessary consequential damages to adjacent property caused by any improvement of its streets, unless the work was negligently done and the damage resulted not from the mere making of the improvement but from the manner in which the work was performed. In this case, however, the defendant does not allege any right lawfully acquired to send down through plaintiff’s premises an extra amount of water over what naturally flows there. It simply,avows having .done so and states that it did not cause the water to overflow the banks of the stream. This, however, is not by the mark, for, as already stated, the plaintiff as a riparian owner is entitled to have the water run there as it was naturally accustomed to. While he
■ The defendant also urges that injunction should be withheld because it would deprive the citizens of Eugene of water for domestic purposes, and fire protection and of electricity for illumination and power purposes, and complains that the plaintiff is seeking to enjoin the operation of the municipal power plant. This is not exact in statement, for it is not alleged in the answer that the use of the slough as a wasteway is essential to the operation of the plant, and no facts are stated from which one could deduce that conclusion. _ The plaintiff seeks simply to enjoin the trespass by which he is denied access to his premises. The case of Booth-Kelly Lumber Co. v. Eugene, 67 Or. 381 (136 Pac. 29), is not like the instant case. There no direct trespass was committed upon the plaintiff’s premises. It claimed to be affected indirectly by an alleged interference with the navigability of the McKenzie River tending to deprive the plaintiff of convenience in floating logs to a waterway leading to its sawmill. In the instant case there is a direct and continuing trespass upon the real property of the plaintiff. _ It is a usurpation of the rights of the plaintiff by a corporation operating in its private capacity for the purpose of gain at least in part, although incidentally of convenience to the inhabitants of the city. The conduct of the municipality affecting the plaintiff is in violation of its charter, for that instrument authorizes it to acquire property, if necessary by condemnation, whereas to all intents and purposes it has appropriated the plaintiff’s property without right or compensation. This is as