Durning v. Walz

• Decision Date: 09 March 1903
• Citation: 42 Or. 109,71 P. 662
• Parties: DURNING et al. v. WALZ.
• Court: Oregon Supreme Court

71 P. 662

42 Or. 109

DURNING et al. v. WALZ.

Supreme Court of Oregon

March 9, 1903

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Suit by John and Maria Durning against Jacob Walz. From a decree dismissing suit, plaintiffs appeal. Affirmed.

This is a suit to regulate the flow of surplus water from defendant's land to that of plaintiffs. It is alleged in the complaint, in substance, that plaintiffs own about 83 acres of land in Jackson county, and that defendant owns a tract immediately south of, but separated from, theirs by a public road; that there are several springs on his land, the waters from which and the rainfall have, from time immemorial, flowed in a swale to and across plaintiffs' land, entering it about 40 rods west of the southeast corner that for more than ten years defendant has diverted water from said swale, and used it in irrigating his land, and prior to 1898 discharged the surplus into said highway at a point about 20 rods east of the southwest corner of their land, across which it flows in a swale, except in the rainy season, when not needed for irrigation, it flows on the east side of their premises; that in 1895 plaintiffs constructed a ditch from near the southwest corner of their land to carry off the surplus water, and prevent it from injuring their premises; that the soil along the line thereof is of such a character that, unless water constantly flows, the ditch becomes dry, and cracks, permitting the water, when its flow is resumed, to percolate, and injure their land; that since 1898 defendant has, in irrigating seasons, discharged the surplus from his ditches at irregular intervals, the interruptions in the flow of which have ruined their ditch and the resumption has prevented them from plowing cultivating, or raising crops on about five acres of land which, without such inundation, would have been very productive; that during the last two years defendant has discharged large quantities of water from one of his ditches upon said highway at a point about 10 rods from plaintiffs' southeast corner, across which it has flowed in an unusual place, to their irreparable injury; that, if said surplus were continually discharged at one place, plaintiffs could control it so as to cause them little damage; that during the last three years defendant has discharged surplus water at various places upon their land, and, claiming the right so to do, he threatens to continue such trespass at irregular intervals, and at such places as may suit his fancy, and, unless prevented by an order of the court, he will carry his menace into effect. The answer denies the material allegations of the complaint, and avers that defendant has for more than 30 years conducted the water flowing from a spring on his premises, and used it in irrigating his land; that such part of the water as was not necessary for that purpose has for more than 25 years flowed in a ditch to plaintiffs' land, which it enters near the southwest corner; that at times during each year the entire quantity of water from said spring is needed to irrigate his land, thereby preventing any flow to plaintiffs' premises, in consequence of which their ditch becomes dry and cracks; that defendant's and plaintiffs' lands slope toward the north, and in the rainy season surface water necessarily flows from his land upon theirs, but the injury of which they complain is not caused by any wrongful act on his part. A reply having been filed, denying the allegations of new matter in the answer, a trial was had, resulting in a decree dismissing the suit, and plaintiffs appeal.

Austin S. Hammond, for appellants.

William M. Colvig, for respondent.

MOORE C.J. (after stating the facts).

It is contended that, the answer having failed to allege any hostile or adverse use of plaintiffs' premises, and no testimony on that subject having been introduced at the trial,...