97 P. 548 | Or. | 1908
Lead Opinion
delivered the opinion.
The testimony of both parties was directed, in part, to the point whether the North Yamhill River at or above plaintiffs’ mill is a floatable stream, and whether
Plaintiff D. P. Trullinger testifies that, prior to the operation of the dams, there was no interference with his power, except occasionally from backwater, and during extremely dry seasons. But since the construction of the dams the race has filled up with mud and debris, and there has been a shortage of water. Plaintiff Carl S. Trullinger says that he has been familiar with the mill and its operation practically all his life, and for some time has been in charge of the mill and light plant; that before defendant’s dams were put in there was no serious trouble in the operation of the mill or light-plant for want of water, but since that time from 12 to 36 inches of dirt and debris has been washed in the race, thereby interfering with the flow of the water therein, and there has been repeated shortage of water while defendant’s reservoirs were being filled. This testimony is substantially undisputed, and shows that the operation of plaintiffs’ mill and power plant has been seriously interfered with by the manner in which defendant has operated his splash dams. This is of itself sufficient to dispose of the case and entitle plaintiffs to relief. We should perhaps stop here; but, in view of the scope the litigation has taken, it may not be improper to indicate briefly our views on some other questions.
It is claimed by plaintiffs that the North Yamhill River at and above their mill is not a navigable or float-able stream. We had occasion in the recent case of Kamm v. Normand, 50 Or. 9 (91 Pac. 448: 11 L. R. A. (N. S.) 290), to define such a stream, and the respective rights of the public and riparian owners thereon. Within the rule announced, the plaintiffs’ position cannot be
Defendant claims that plaintiffs’ dam in its present condition is an unlawful obstruction to the floating of logs, and. we are inclined to think there is some merit in this contention. The dam is constructed of brush, logs, and stone, and is 4 feet high and 60 feet long, with a perpendicular breast on the down-stream side. No special provision, such as an apron or sluiceway, is provided for the passage of logs. It requires, according to the testimony of both plaintiffs, a rise of four or five feet in the river for logs to pass over the dam, while the evidence shows they will float and can be successfully run in the stream on a depth of water of from two to three feet. It therefore requires more water to carry logs over the dam than to float them in the stream, indicating that the dam is an obstruction. Plaintiffs say, however, that they have a right by prescription to maintain the dam at its present height, and in its present condition, even if it does- interfere with navigation. It is doubtful whether a right to maintain an obstruction to navigation in a natural stream can be so acquired.
The decree of the court below should be reversed, and one entered here to restrain and enjoin defendant from so using his splash dams as to interfere with the use of the waters of the stream by plaintiffs for power purposes.
Reversed: Decree Rendered.
Rehearing
Decided February 16, 1909.
On Petition for Rehearing.
[99 Pac. 800.]
delivered the opinion.
The principal object of this suit as disclosed by the complaint, was to obtain a decree restraining the defendant from interfering, by the operation of his splash dams, with plaintiffs’ use of the waters, in the North Yamhill River, for power purposes. The questions whether the stream is navigable or floatable, whether plaintiffs’ dam is an unlawful obstruction therein, and the respective rights of the public and riparian owners were issues tendered by the defendant in his answer, and are incidental to the main purpose of the suit. The court below held that the stream, from the splash dams of defendant to its mouth, is a navigable and floatable stream, and a public highway, and that the right of plaintiffs to maintain a dam therein for power purposes is inferior and subject to the right of navigation; that plaintiffs may maintain and operate such a dam so long as it does not interfere with the use of the stream as a public highway, but that the defendant has a right to operate his splash dams in the manner complained of, subject only to answer in damages to any riparian owner injured thereby, thus practically denying the relief sought. From this decree the plaintiffs appeal, and on
It is suggested, however, that in order to put an end to the controversy between the parties, the court should determine in this suit the extent to which defendant may use his splash dams, to facilitate the floating of logs in the stream, without being liable to riparian proprietors therefor, and whether plaintiffs’ dam is an unlawful obstruction to navigation, and, if so, the extent to which it should be lowered or otherwise modified, so as not to interfere with the floating of logs over it. The law on the first point is, we think, sufficiently indicated in Kamm v. Normand, 50 Or. 9 (91 Pac. 448: 11 L. R. A. (N. S.) 290, and the opinion heretofore filed in this case. The application of this rule can be made only to concrete cases, as they arise. We hold that the use of the splash dams by defendant, as disclosed by the testimony, has been such as, not only to retard the natural flow of the water, thus interfering materially with the continuous operation of plaintiffs’ mills, but also to their injury by depositing dirt and debris in their mill pond and races, by the sudden discharge of the accumulated water, and plaintiffs are therefore entitled to an injunction against such use of the dams, but in the nature of things it would be impossible to state in a decree what quantity of water defendant may accumulate above his dams, and suddenly discharge, without injury to plaintiffs. All the court can decree is that under the case as made the manner in which defendant has heretofore used the dams is injurious to plaintiffs.
Upon the other point it is sufficient to say, as stated in the former opinion, that on the record before us we are inclined to think the power dam of 'plaintiffs, in its
Modified: Remanded with Instructions.