Eastern Oregon Land Co. v. Deschutes R. Co.
| Decision Date | 01 October 1917 |
| Docket Number | 2814. |
| Citation | 246 F. 400 |
| Parties | EASTERN OREGON LAND CO. v. DESCHUTES R. CO. DESCHUTES R. CO. v. EASTERN OREGON LAND CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
This controversy arises out of conflicting claims by the Eastern Oregon Land Company (hereinafter designated as the 'complainant') and the Deschutes Railroad Company (hereinafter designated as the 'defendant') to reservoir and water storage rights claimed by the complainant in the Deschutes river and along its banks and rights of way claimed by the defendant over and across certain lands owned by the complainant and through which flows the Deschutes river in Oregon. The lands are located, and for convenience of reference they may be classified as follows:
(c) Lot 1 (N.E. 1/4 of the N.E. 1/4) of section 3; northeast quarter of the southeast quarter (N.E. 1/4 of the S.E. 1/4) of section 9, all in township 4 south, range 14 east, Willamette meridian.
There are certain other lands mentioned in the complaint which, it has been found, the line of the defendant's railroad does not cross or touch, and are, therefore, not involved in this appeal. These lands are described as follows:
(d) West half of the southwest quarter (W. 1/2 of the S.W. 1/4) of section 27, township 3 south. range 14 east, Willamette meridian; southeast quarter of the northwest quarter (S.E. 1/4 of the N.W. 1/4) of section 3; northwest quarter of the southeast quarter (N.W. 1/4 of the S.E. 1/4), northeast quarter of the southwest quarter (N.E. 1/4 of the S.W. 1/4), and northwest quarter of the southwest quarter (N.W. 1/4 of the S.W. 1/4) of section 9; northeast quarter of the southeast quarter (N.E. 1/4 of the S.E. 1/4) of section 8, all in township 4 south, range 14 east, Willamette meridian.
The complainant sued to enjoin and restrain the defendant from constructing and maintaining its railroad along the Deschutes river over and across complainant's lands described above. The original complaint was filed April 18, 1910; the amended complaint, November 12, 1913. At the time the original complaint was filed the defendant was engaged in the construction of its road through complainant's lands and had its grade practically completed. The road was located and the work of construction commenced while the land was claimed by complainant's predecessors in interest. These predecessors, so far as they are material to this controversy, were one J. H. Sherar, claiming the lands described in the preceding clauses (a) and (b) of this statement, and the Interior Development Company, claiming the lands described in the preceding clause (c), together with water power rights in the Deschutes river.
The Deschutes river flows through these lands in a deep gorge or canyon, and by reason of falls therein, the quantity of water, the uniformity of flow, and the steep and precipitous banks, the site is valuable for power purposes, provided (it is claimed by the complainant) a 60-foot dam, above ordinary low water in the river, can be maintained at the power site.
The defendant's road runs along the side of the canyon and has been constructed upon a grade at and above the power site, which complainant claims will not admit of a dam 60 feet in height in the river without flooding the fills and embankments of defendant's roadbed above such dam, and in times of high water endangering the road itself in that locality, unless the same is properly protected.
The further claim of the complainant is that the defendant entered into possession of its right of way under oral agreements or understandings with its predecessors in interest to locate its road so as to permit and protect the maintenance of a 60-foot dam, above ordinary low water in the river, but, as the road has been actually built, no such dam can be safely constructed, unless the defendant is required to protect its own roadway above the dam; and, as a consequence, the value of the water power is greatly impaired and damaged. It is alleged in complainant's complaint that the defendant has at all times known that the lands in suit are valuable chiefly because of the fact that the Deschutes river flows through them, and in its course through these lands the flow of the river is so great that it can be advantageously used for the development of power. The prayer of the complaint is that the defendant be enjoined and restrained from constructing, maintaining, building, or operating a railroad over the lands in suit, and from interfering with plaintiff's possession thereof.
The defendant's answer admits that complainant has the legal title to the lands described in the complaint, but it is claimed by the defendant that the complainant acquired its title to such lands after the defendant had entered upon such lands and partly constructed its grade; that defendant entered into possession of its right of way under an agreement with the executors of the estate of J. H. Sherar, B. F. Laughlin. and the Interior Development Company, the predecessors in interest of the complainant in such lands described, in which agreement it was provided that, if the road should be constructed as high as the same could be conveniently raised without making the expense prohibitive and without interfering with the proper and convenient operation of the line, the damage would be nominal; that Laughlin and the Interior Development Company at all times knew where the road was located, and at all times expressed approval of the height at which the line was proposed to be constructed and was being constructed, and never at any time objected to the defendant because of the height or manner in which said road was constructed or to the location thereof, until the line was practically completed across said lands. It is alleged in defendant's answer that it has acquired by purchase certain lands and the right of way over certain other lands for railroad purposes along the Deschutes river, above the lands owned by the complainant; that complainant has acquired no right to flow the waters of the river back upon any of the lands so acquired by the defendant or back or over or upon its right of way, or to raise the waters of the river above its natural flow; and the defendant charges that any dam which the complainant might construct across the Deschutes river, or the development of any power by the use of the waters of the Deschutes river by means of any such dam at or along or in the neighborhood of any of the lands described in the complainant's amended bill as belonging to the complainant, will result in the flooding and overflowing of the defendant's said lands so purchased for railway purposes. and will overflow the defendant's right of way, causing great and irreparable injury and damage to the defendant and its line of road.
The answer concludes with the prayer that the bill of complaint be dismissed; but, in case the court should adjudge that the defendant was not entitled to have the bill dismissed, then the court was asked to determine the amount of damages sustained by the complainant or to which the complainant might be entitled by reason of the location and construction of defendant's line of road over and across the lands owned by the complainant, and that it be decreed that complainant shall make, execute, and deliver a good and sufficient deed therefor upon the payment by the defendant to the complainant of such sum as the court shall find.
Wirt Minor and Veazie, McCourt & Veazie, all of Portland, Or., and Charles S. Wheeler and John F. Bowie, both of San Francisco, Cal., for appellant.
A. C. Spencer, W. A. Robbins, and James G. Wilson, all of Portland Or., for appellee and cross-appellant.
Before GILBERT, MORROW, and HUNT, Circuit Judges.
MORROW Circuit Judge (after stating the facts as above).
1. With respect to the lands described as the north half of the southwest quarter of section 35, township 3 south, range 14 east, Willamette meridian, and lot 2 (northwest quarter of the northeast quarter) of section 3, township 4 south, range 14 east, Willamette meridian, the decree of the lower court provides that:
'The title of complainant to said property was acquired subsequent to the acquirement of said right of way of defendant over said property, and the same is subject to such right of way, provided, however, that the right hereby decreed to defendant shall not be understood or considered to interfere with or deprive complainant or its successor in interest of the right to construct and maintain a dam for hydraulic purposes in the Deschutes river where it passes through such property. and installing in connection therewith appliances for the purpose of developing hydraulic and electric power for all purposes, provided the track or roadbed of defendant shall not thereby be flooded or damaged, or the operating of its road interfered with.'
The first question to be determined is whether the title to the lands described in this part of the decree was acquired by the complainant prior to the defendant's claim of a right of way over such lands....
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