Becker v. Tillamook Bay Lumber Co.
| Decision Date | 06 February 1952 |
| Parties | BECKER v. TILLAMOOK BAY LUMBER CO. et al. |
| Court | Oregon Supreme Court |
H. T. Botts, of Tillamook, argued the cause for appellant. With him on the brief were John W. Hathaway, of Tillamook, and Virgil Colombo, of Portland.
E. J. Claussen, of Tillamook, argued the cause for respondents. With him on the brief were J. S. Bohannon and Warren A. McMinimee, of Tillamook.
Before HAY, Acting C. J., and LUSK, LATOURETTE, WARNER and TOOZE, JJ.
This is a suit commenced by Ola May Becker, as plaintiff, against Tillamook Bay Lumber Co., a corporation, Herold E. Wade, and Cecil R. Pearson, as defendants, to enjoin defendants from performing certain acts which are alleged to have damaged plaintiff's property, and for damages. The trial court entered a decree dismissing plaintiff's suit with prejudice, and plaintiff appeals.
Plaintiff is the owner of approximately one-fourth acre of land located in section 26, township 1 south of range 10 west of the Willamette meridian, in Tillamook county, Oregon, and about 1 1/2 miles west of the city of Tillamook. This land is a part of a five-acre tract, the remainder of which is owned by defendant Tillamook Bay Lumber Co., hereafter referred to as Lumber Company. The entire five-acre tract is composed of what is known as tideland, and the ground is low, swampy, and soft. Plaintiff's land is at the lowest point of said tract.
The five acres in question originally were bounded on the north by what is now Bayocean Market road No. 4 and on the west, south, and east by a tide slough known as Tomlinson Slough, which intersects the Bayocean road several hundred feet west of the east side of the tract of land in question and, following a curving course to the south, east, and north, empties into Tillamook bay.
This tract of land formerly was part of a large ranch which was owned by one Beals. To protect the lands from overflow, Beals constructed a dike along the slough and near the northwest corner of the tract provided openings therein through which the water drained from the land into the slough.
Subsequently, a highway leading from Tillamook to Netarts has been built immediately inside the eastern portion of the dike, the highway having been filled in and the slough crossed by a bridge at or about the southernmost part of the dike.
The Netarts and Bayocean roads meet at the west end of a drawbridge over the Tillamook river and diverge from their junction, the Bayocean road leading northwesterly and the Netarts road leading southwesterly. Plaintiff's land is located at the apex of the angle formed by the two roads.
A number of years prior to 1940, one Ira Tomlinson purchased the five-acre tract from Beals. Tomlinson, in 1936, sold the one-fourth-acre tract now owned by plaintiff to one Arnold Saling, and Saling later sold to Frank H. Caldwell. In 1946, plaintiff rented the tract from Caldwell with an option to purchase, which option she exercised in 1947.
In about 1940, Tomlinson sold the remainder of the five-acre tract to Tillamook Box Company, hereafter referred to as the Box Company, which was a copartnership composed of one Effenberger and one Peregoy. The Box Company sold to the defendant Lumber Company in October, 1946, and since that time defendant has operated a sawmill thereon.
In approximately 1939, there was constructed on the one-fourth-acre tract a frame structure. This building housed a restaurant, tavern, and place of entertainment under the name of 'Dawn Club'. In 1946 or 1947, plaintiff caused an L-shaped addition to be added to the southeast corner and a rectangular addition to be added to the northerly end of the original building. Both the original building and the additions were built on 'mudsills' consisting of pieces of wood laid on the ground, upon which posts for the superstructure were set. The building with its additions is now 36 feet by 84 feet in size. Posts are set at 12-foot intervals.
The Box Company in about 1940 commenced the construction of a sawmill on their land. They drove piling upon which to set the mill. The ground was so soft and mucky that the Box Company was compelled to drive piling down 30 to 35 feet before striking a firm foundation in soapstone. Because of the intervention of the war, construction of the mill was delayed at that time and was not resumed until 1945, when the mill finally was erected and placed in operation.
The evidence discloses that the entire five-acre tract is a low area as above stated and is located at the base of some comparatively high hills which drain a valley and the adjacent hills to the west (several thousand acres of land) of surface waters; it also is subject to overflow from high tides and from flood waters of the sloughs and the Tillamook river in times of heavy precipitation. Surface waters, high tide waters, and flood waters all converge at the point of plaintiff's property.
The able trial judge, in addition to hearing the testimony and having before him the several exhibits admitted in evidence, at the request of the parties viewed the premises in question at the time of trial and was in a position to weigh the testimony in the light of what he actually observed on the ground. Furthermore, we heed the fact that the trial judge has been holding court in Tillamook county for many years and, therefore, must be entirely familiar with conditions there as they relate to tidelands, weather conditions, surface and tide waters, and flooding in general. We repeatedly have said that in equity proceedings the findings on the facts of the trial judge are entitled to great weight, and where, as in this case, he personally views the premises involved and considers the testimony in the light of such view, his conclusions are entitled to greater weight.
The trial judge prepared and filed a memorandum opinion stating the reasons which impelled him to reach his ultimate conclusion. The considerations appearing from the record, which influenced him, impress us as ample warrant for his decision, and their statement answers every contention which counsel for plaintiff have made in this court. The opinion of the trial judge is as follows:
'The plaintiff seeks to recover damages from the defendants, alleging that she was the owner and in the possession of real property upon which she operated a restaurant and place of entertainment since January, 1946.
'She alleges that the land upon which her place of business is located was drained by a natural water course consisting of a slough which drained into the Tillamook River.
'She then alleges that the defendant Tillamook Bay Lumber Co. operates a sawmill on lands lying west of and adjacent to plaintiff's land, and that they have wrongfully constructed a roadway over the slough, leaving only a small opening therein for water from said slough to pass, said opening being too small to accommodate and carry the water naturally flowing out of said slough at said point; that they caused sawdust and other debris to be deposited in said slough and other waters adjacent thereto, and thereby have caused the water naturally flowing out of said slough to accumulate and raise to such height as to overflow plaintiff's said lands and to stand and stagnate thereon, and thereby caused plaintiff's said building to be undermined and to settle and be out of level, the floors to buckle and to become and remain unusable, and such stagnant waters have caused noisome, offensive and unsanitary odors to arise and penetrate said building, and thereby rendered said building unfit for use, and that plaintiff has thereby been compelled to abandon and has been deprived of the use of said building and the equipment since on or about January 1, 1949.
'Plaintiff is seeking damages to said building and for the loss of profits in the sum of $13,020.00, and also a decree enjoining and restraining the defendants from maintaining any obstructions in said water course which will prevent waters therein from running in their normal course and quantity, and that they be required forthwith to remove such obstructions as they have placed in said water course.
'The defendants have filed an answer in which they...
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