Deadmond v. Moon

• Decision Date: 15 November 1927
• Citation: 123 Or. 28,260 P. 1100
• Parties: DEADMOND ET AL. v. MOON ET AL.
• Court: Oregon Supreme Court

260 P. 1100

123 Or. 28

DEADMOND ET AL. v. MOON ET AL.

Supreme Court of Oregon

November 15, 1927

Department 1.

Appeal from Circuit Court, Coos County; John C. Kendall, Judge.

Suit by Roy E. Deadmond and another against F. U. Moon and another. Decree for defendants, and plaintiffs appeal. Affirmed.

Plaintiffs instituted this suit to enjoin defendants from placing and maintaining dams, locally called deadheads, in the stream passing diagonally through plaintiffs' premises. Plaintiffs are in possession of 200 acres of land under a contract of purchase. Their vendors sold the timber on said tract prior to entering into the contract with plaintiffs to sell the land to them. By the terms of the contract and deed between plaintiffs and their vendors, plaintiffs hold their interest subject to the sale of the timber to defendants' principal. Defendants' principal had 10 years--that is until February 28, 1930--in which to cut and remove the timber from said premises. Plaintiffs do not question the right of defendants to cut and remove the timber, but seek by this litigation to prevent defendants from using deadheads for that purpose. Plaintiffs claim that by placing deadheads in the stream the water is backed up, the banks softened and made subject to caving and washing to the damage of plaintiffs' land. They also contend that the stream is likely to wash around the ends of the temporary dams and thereby cause the banks to erode. Defendants contend that they are operating in the usual manner, and are doing no unnecessary damage to plaintiffs' land. Defendants claim that less damage is being done to the premises belonging to plaintiffs by placing deadheads in the stream as they are doing than otherwise to move the timber, because fewer landings are required on the banks, the logs can be placed in better shape to go out with less water, and plaintiffs' land is cut up less by the operation of their tractor in getting the logs from the land to the river bank. But little difference exists between the parties in the law applicable. The main question to be answered is one of fact.

Arthur K. Peck, of Marshfield (Peck & Brand and J. F. Anderson, all of Marshfield, on the briefs), for appellants.

H. S Murphy, of Marshfield (Goss & Murphy, of Marshfield, on the briefs), for respondents.

COSHOW, J. (after stating the facts as above).

The contract for the sale of the timber under which defendants are operating does not specify the manner of moving the logs from the premises. Any reasonable or workmanlike method which does no unnecessary injury to the land or damage to plaintiffs may be used by defendants. Both plaintiffs and defendants rely upon the rules announced in Kamm v Normand, 50 Or. 9, 91 P. 448, 11 L. R. A. (N. S.) 290 126 Am. St. Rep. 698. Plaintiffs claim the benefit of this language in page 14 of the official report (91 P. 450):

"But a stream which is not such a highway cannot be made one by the use of dams or other artificial means, without first acquiring the rights of riparian proprietors: 1 Farnham, Waters, § 139. Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure, or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream, with no burden or hindrance imposed by artificial means." (Long list of authorities cited.)

Other authorities cited by plaintiffs include Stephens v. City of Eugene, 90 Or. 167, 175 P. 855; Hanson v Crouch, 98 Or. 141, 193 P. 454; Logan v. Spaulding Logging Co., 100 Or. 731, 736, 190 P. 349; Mendenhall v. Harrisburg Water Co., 27 Or. 38, 44, 39 P. 399; Hallock v. Suitor, 37 Or. 9, 12, 60 P. 384; Flinn v. Vaughn, 55 Or. 372, 106 P. 642.

These authorities support the contention of plaintiffs, but they are not applicable to the instant case. In all those cases the persons seeking injunctive relief sustained no contractual relations with the parties using the stream. Plaintiffs are bound by the contract to permit defendants to remove the timber from plaintiffs' premises. Defendants have an easement or license to enter upon plaintiffs' land and to cut and remove the timber. Unless the manner in which defendants are operating is doing plaintiffs unnecessary injury, defendants are not trespassing.

Defendants rely upon this rule announced in Kamm v. Normand, above:

"Dams dikes, embankments, and the like may be constructed in or along floatable streams to facilitate their...