13 Or. 28 | Or. | 1885
This appeal is from a judgment in an action for damages to real property, caused by turning a supply of water from the Santiam River into what is known as Mill Creek, thereby causing the waters thereof to overflow its banks and inundate about fifty acres of the respondent’s farming lands, and which caused it to remain too wet for the purposes of husbandry for the two years next prior to the time of the commencement of the action. The case was tried by a jury, and resulted in a verdict for the respondent for the sum of $500, upon which the judgment appealed from was entered.
The appellants have assigned several matters as error, upon which they insist that the judgment should be reversed. The first point is, that the respondent was permitted to show that his land was overflowed by a slough, through and into which the waters of Mill Creek had been turned by a party named Turner. This evidence was objected to, upon the grounds that it was alleged in the complaint that the damage was caused by the overflowage of Mill Creek instead of this slough, and that said Turner had occasioned it, and not the appellants. The statement in the bill of exceptions is so general that this Court cannot determine, with any degree of certainty, as to the competency of the evidence. If the respondent’s land was overflowed in consequence of the act of Turner, and not of that of the appellants, then it was error to allow proof thereof to be given in order to establish a liability against the latter. But it is not shown where or under what circumstances the water had been turned into the slough, nor how that affected this
The second point is, that witnesses were allowed to testify that the respondent’s land, alleged to have been damaged, was flooded and damaged by the appellants prior to the two years alleged in the complaint. This exception is subject to the same difficulty as the former one, in not being explicit. The testimony as to the overflow of the land would necessarily be directed to the fact as to when it took place. It might have occurred two or five years prior to the time of the commencement of the action. However that may have been, tlie respondent, under his complaint, could only recover damages which it had occasioned during the two years next preceding that time; and if the court permitted him to recover for damages to the land accruing prior to that period, it would have been error. But it does not necessarily follow, because the court permitted evi
The third point relates to an instruction of the court to-the jury that a verdict should be found for the respondent, if it appeared from the testimony that the appellants had, within the last two years, turned into said creek such an amount of water as would have overflowed, upon the respondent’s land had the water flowed down. Mill Creek, as originally designed by appellants’ predecessors, instead of flowing down the course to which it was-averted by said Turner. The objection urged to this’ instruction seems to be that the jury were made to understand that they could consider any act of diverting the water by the appellants up to the time of the trial of the case, and award damages occasioned after the commencement of the action. The instruction had no reference to damages; it referred entirely to the right to recover generally. The first question for the consideration of the jury was as to whether the respondent should have a verdict at all. If they concluded he should, then the nexfe
The fourth point relates to the instruction given by the court, to the effect that if the respondent never agreed that ttys appellants might overflow his land, and never acquiesced in its being flooded, then the appellants’ plea of the statute of limitations should be dismissed by the jury. This instruction was inartificially drawn, but I hardly think it erroneous. The appellants set forth in their answer a prescriptive right to have
The fifth ground of error assigned includes the instruction given by the court to the jury, to the effect that if they found from the testimony that, during the last two and one half years, the land of the respondent had been flooded to a greater extent than ever before, then the appellants’ claim of a right to overflow said land, on the ground of a right by prescription, should, so far as the increased flowage was concerned, be dismissed by them when finding their verdict. This instruction was clearly correct and pertinent to the issue. It went directly to the point. The appellants may have acquired a prescriptive right to raise the water in Mill Creek to a certain stage, but that would not give them the right to raise it higher, unless they had been in the uninterrupted enjoyment of the latter right for a period at least equal to the statute of limitations.
The sixth and last ground assigned as error is the refusal of the court to grant a new trial upon the grounds
The record fails to disclose error, and the judgment, therefore, is affirmed.