Cartwright v. Southern Pac. Co.
| Decision Date | 21 July 1913 |
| Docket Number | 3,669. |
| Citation | 206 F. 234 |
| Parties | CARTWRIGHT v. SOUTHERN PAC. CO. |
| Court | U.S. District Court — District of Oregon |
A. C Woodcock, of Eugene, Or., and Martin L. Pipes, of Portland Or., for plaintiff.
Wm. D Fenton and Ben. C. Dey, both of Portland, Or., Jas. E Fenton, of San Francisco, Cal., and Kenneth L. Fenton, of Portland, Or., for defendant.
This case was submitted some months ago. Its decision has been delayed waiting briefs which the court understood counsel desired to file. No briefs have been submitted, and, as more than a reasonable time for filing the same has elapsed, it is assumed that none will be.
The suit was commenced in June, 1910, to enjoin and restrain the defendant company from maintaining four certain dikes in the Willamette River above the Harrisburg Bridge, erected by it in 1905, and for damages on account thereof.
Before the construction of the dikes the river made quite a sharp turn to the left or west at or just below the bridge, and the current, avoiding plaintiff's land, closely hugged the west bank and was eroding and washing it away and endangering defendant's bridge and roadbed. The dikes are permanent structures and extend from the west bank into the river several hundred feet; the purpose being to deflect the current and protect the bank. At the time their construction was commenced, the plaintiff, who owns a valuable farm on the opposite side of the river and extending below the bridge, objected thereto on the ground that the effect would be to change the channel of the stream and throw the current against his land, washing away his soil and destroying his property. The defendant therefor constructed a wingdam on the east side of the river, where damage was likely to occur to plaintiff's property, for the purpose of protecting the same, but shortly thereafter removed the dam with dynamite on a public holiday, notwithstanding the vigorous protest of the plaintiff and his request to the defendant's agents to postpone the matter until the following day so that he could institute legal proceedings to prevent or enjoin the destruction thereof. The result of the erection of the dikes on the west side of the river and the removal of the wingdam on the east bank was to deflect the current and throw it against the opposite bank, causing the river to abandon its former channel and cut a new one through the plaintiff's land, carrying away his soil to his great injury.
The change in the course of the stream occurred and the damage was inflicted prior to the commencement of this suit, and it is not probable that the river would have returned to its original channel if the dikes had been removed at the time nor will it do so now. A decree requiring an abatement of the obstructions would therefore be of no benefit to the plaintiff, but a substantial injury to the defendant, as they are necessary to the...
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