City of Gold Hill, Or. v. California Oregon Power Co.

• Decision Date: 21 October 1929
• Docket Number: No. 5806.,5806.
• Citation: 35 F.2d 317
• Parties: CITY OF GOLD HILL, OR., et al. v. CALIFORNIA OREGON POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

35 F.2d 317 (1929)

CITY OF GOLD HILL, OR., et al. v. CALIFORNIA OREGON POWER CO.

No. 5806.

Circuit Court of Appeals, Ninth Circuit.

October 21, 1929.

Gus Newbury, of Medford, and John K. Kollock and McCamant & Thompson, all of Portland, Or., for appellants.

A. E. Reames, of Medford, Or., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and LOUDERBACK, District Judge.

DIETRICH, Circuit Judge.

In the court below appellee and appellants were respectively plaintiff and defendants, and we shall so refer to them here. Plaintiff is a public service corporation engaged at many points in generating electric current for public use, and it and its predecessors in interest long have held title to certain lands on the easterly bank of the Rogue river near Gold Hill, Or. The defendant City of Gold Hill holds, and for a long period it and its predecessors in interest have held, title to lands opposite to this tract on the westerly bank of the river. Under the laws of the state a riparian owner takes title to the bed of the river, and admittedly here the common boundary line between the two tracts is the thread of the stream. Upon its tract the defendant city maintains, and from about the year 1882 it and its predecessors have maintained, a small hydroelectric plant by which a part of the water of the river is utilized for generating current for the use of itself and its inhabitants. In October, 1926, and prior to the commencement of this action, it entered into a contract with its codefendant, the Beaver Portland Cement Company, a large user of electric current, under the terms of which it leased its property to that company with an option to purchase. Being desirous of having the plant enlarged and of having constructed a dam across the river from bank to bank, it brought an action in the proper state court for the condemnation of such property rights belonging to plaintiff as would be required for the project, but for reasons presently immaterial it failed and the action was dismissed. Thereupon the cement company, changing its plans, commenced the construction of a wing dam mainly upon the site of an old wing dam which at an early date had been built by the city's predecessors in interest and was maintained by them up to 1900 when the larger part of it washed out. This dam extended from the westerly bank somewhat diagonally upstream to a point a few feet from the easterly bank where it terminated in a crib pier approximately 10 or 12 feet wide athwart the stream. The pier stood until 1927 when it was washed out. As to the length of this pier, in the general direction of the current, the testimony exhibits a wide diversity — all the way from 20 to 80 feet. Contending that the projected construction, which had actually been commenced, would constitute a trespass upon its property, plaintiff brought this suit to enjoin the defendants from proceeding therewith. There was a decree for plaintiff, and defendants appeal.

Primarily, the contention of appellants is that they have the right to reconstruct the old works, or, more accurately, to build upon the site of the old dam and pier a new structure of substantially the same dimensions. This the plaintiff resists upon the ground, as alleged, that such easement as defendants' predecessors acquired easterly from the thread of the stream was lost through nonuser and abandonment. That this issue may be clearly defined perhaps it should be observed that apparently the defendants have certain rights to the use of waters of the river acquired under the rule of appropriation prevailing in Oregon and other western states, and that plaintiff has no such rights. The latter asserts its intention some time in the future, in some way, to use its property as a site for hydroelectric development, but in fact it has done nothing on the ground, nor has it formulated any specific plans. But in so far as concerns this particular issue, these considerations are immaterial. The fact that defendants have water rights confers upon them no authority to go upon the private property of another to construct works for their utilization. This they concede and contend only that they lawfully acquired and still possess the easement of which they seek to make use.

That their predecessors acquired such an easement and that they have succeeded to it, if it has not been lost by nonuser or abandonment, there is no question. This was definitively adjudicated in the United States District Court for Oregon in 1911 in a suit between the...