Tongue v. Gaston

10 Or. 328 | Or. | 1882

By tlie Court,

Lord, J.:

This suit is brought by Tongue, the appellant, to enjoin the defendant from maintaining a dam across Patton creek, by means of which the waters of said creek are diverted through a canal across plaintiff’s land, and, as he alleges, to his irreparable injury. The answer puts in issue the injury and damages, and sets up as a separate defense that the dam, with a canal complained of, is part of a system of improvements for the purpose of drainage, constructed by the defendant under tlie authority of the county court, &c., and also, that it was located and constructed over plaintiff’s land with his consent, and that the same has been in useful operation for such purposes of drainage since the construction of such improvements. The court sustained a demurrer to the separate answer, and upon the remaining issues evidence was taken and submitted to the court, which, after due consideration, refused tlie injunction prayed for. It is not perceived upon what ground this demurrer was sustained, nor were any authorities cited, or argument made, to support such ruling of tlie court. Waiving this, however, the appellant conceded that the canal was constructed across his land with his consent, but he claimed that that consent did not include the erection of the dam across the stream, and tliat liis consent must be confined to tlie location and construction of tbe canal, and not to tbe dam, which caused tbe overflow and tbe injury; and, therefore, conceding tbe rights .of tbe defendant in tbe premises to that extent, be submitted upon tbe evidence whether be was entitled to an inj unction. Tbe evidence shows that tbe object of diverting tbe water from the stream into tbe canal was two-fold — to drain Wapato lalte by leaving tbe channel open below tbe dam, with which it was to be connected by a short canal, and to drain tbe lands through which tbe proposed canal was to pass, among which was tbe land of tlie appellant. Before, and at tbe time tbe dam and canal were constructed, tbe evidence indicates that the appellant knew and understood these objects, and bis consent and waiving damages, are some indication of tbe supposed benefits which be presumed would result to bis land from tbe proposed improvements. But be insists that if tbe canal bad been excavated to the depth of tbe bed of tbe stream, it would have obviated tbe necessity of tbe erection of a dam across tbe stream to divert tbe water into tbe canal, and thus avoided the injury of which be complains. To this, it is replied that tbe appellant knew and understood, before and at tbe time be gave bis consent to tbe location of tbe canal across bis lands, that it included tbe erection of a dam across tbe stream to turn tbe waters of it into tbe proposed canal; that such dam was regarded as essential to be of any value or benefit to the Wapato lake part of tbe improvement, which was the main inducement of tbe respondent to undertake otbe proposed plan of improvements, and incur tbe heavy expense their construction necessarily involved; and finally, to construct tbe canal on tbe line located, and to which be bad given bis consent, it necessarily tapped the stream at a sharp angle; that tbe width of tbe stream and tbe force and flow of its waters at that point, and the general features of the land surrounding, made it absolutely necessary to erect a dam across the stream to turn its waters into the canal, as without it the main body of the water would continue to flow ou in the channel of the stream, even though the bed of the canal was dug as low as the bed of the stream.

Without pursuing the respective merits of these theories further, we are satisfied that the evidence does not support the claim of the appellant to the equitable' interposition of the court. The weight of evidence clearly indicates that the injury from the overflow is not occasioned by the dam, but is attributable to natural causes which existed long before the dam was erected. It shows that the lands of the appellant lie at the base of the foot-hills, and are overflowed by slight freshets; that there are breaks or low places along the banks of the stream for some distance up it, and through which the water runs, cutting channels in several directions when the height and volume of the stream is increased by the winter rains, and necessarily overflows the lands of the appellant from the nature of its location; that these overflows occurred frequently, and years before the erection of the darn, nor have these overflows been any worse since. Allowing the highest consideration to the evidence for the appellant, it is confronted with too much evidence disputing his alleged grievance to authorize the interference of equity. The general rule is, that an injunction will not be granted where the evidence is so conflicting as to -make the right to it doubtful. The burden of proof in such case being on the plaintiff, he must clearly establish the essential allegations of his complaint. The decree of the court below is affirmed.

Decree affirmed.