Esson v. Wattier

• Decision Date: 13 November 1893
• Citation: 34 P. 756,25 Or. 7
• Parties: ESSON v. WATTIER.
• Court: Oregon Supreme Court

34 P. 756

25 Or. 7

ESSON v. WATTIER.

Supreme Court of Oregon

November 13, 1893

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by Alexander Esson against Vallier Wattier to enjoin the construction of a dam. An injunction was denied, and he appeals. Affirmed.

The other facts fully appear in the following statement by MOORE J.:

This is a suit to enjoin the defendant from constructing a dam across Big Pudding river, in Marion county. The facts show that plaintiff owns and resides upon a tract of land containing about 320 acres, the southern boundary of which, at the nearest point, and about four-fifths of a mile above defendant's dam, is separated from the river by a bank about eight feet wide. Poison lake, a low, marshy tract, lies east of and partly upon plaintiff's land, from which a creek flows northwest, and empties into the river below the dam. This river is a sluggish stream, having a fall of about 3 feet to the mile, and its banks, above the dam, are from 12 to 20 feet higher than the ordinary stage of water. The winter freshets, however, cause the river to rise rapidly and back the water into Poison lake, and plaintiff's land is liable to be submerged thereby. The defendant owns a saw and grist mill at Parkersville, valued at about $18,000 which are operated by water supplied through races from the river and from Lake Labish. The defendant's predecessor in interest, in 1854, built a brush dam about 12 feet high across the river, which in 1880 was in part carried out by a freshet, and the defendant from time to time thereafter tore down the remainder, and in 1891 began to drive piles in its place, to build a new one eight feet high, when this suit was commenced. Plaintiff alleges that, if the dam be erected, the following injury will result: (1) It will obstruct a public navigable stream, but does not allege that he will sustain any personal injury thereby; (2) that the water will percolate through the soil, and 75 acres of his land will be flooded by backwater, and become wet and unproductive, thus causing him irreparable injury, and necessitate successive actions from year to year to recover his damages; (3) that the water in the pond will become foul, stagnant, and unhealthy, impregnating the atmosphere with malaria, and that he and his family will be exposed to the danger of having their health impaired thereby. The issues being joined, the testimony was taken before a referee, and at the hearing the court, having found that the equities were with the defendant, made a decree dissolving a temporary injunction that had been issued, and dismissing the complaint, from which the plaintiff appeals.

Bonham & Holmes, for appellant.

Geo. H. Williams, for respondent.

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

Plaintiff's first contention is that Big Pudding river is a public navigable stream; that the erection of a dam across it creates a nuisance; and that, to prevent which, he is entitled to the interposition of a court of equity. A court of equity will restrain a nuisance when it appears that the complainant will sustain irreparable injury, or be compelled to resort to a multiplicity of actions to recover damages for a continued existence thereof. Bassett v. Manufacturing Co., 43 N.H. 249. To entitle the plaintiff, however, to such relief, he must allege and show that he has sustained a special or personal injury. "A court of equity," says Lord, C.J., "ought not to interfere to prevent a public nuisance, or to abate one already existing, at the instance of a private party, unless he shows a special injury, distinct from the public, actually sustained or justly apprehended. The obstruction of a public highway is, without doubt, a public nuisance; but this of itself it not sufficient to justify the interposition of equity in behalf of the plaintiff, unless he sustains some private, direct, and material damage beyond the public at large." Luhrs v. Sturtevant, 10 Or. 170. Plaintiff has not alleged that the obstruction of the navigation of the river has or will cause him any special or personal injury, and hence he is not entitled to any relief on that ground.

Will the plaintiff sustain damage from backwater either by overflow or percolation? In Fletcher v. Rylands, L.R. 1 Exch. 265, L.R. 3 H.L. 330, Mr. Justice Blackburn, in the court of exchequer chamber, thus illustrates a rule applicable in this case: "If a person brings or accumulates on his land anything which, if it should escape may cause damage to his neighbor, he does so at his peril." This principle, thus established, has since been applied to injuries resulting to adjoining land from the percolation of an artificial reservoir. Gould, Waters, § 296. If a dam be erected across a stream, and the water raised above the natural flow, it forms a reservoir which necessarily creates an artificial pressure, ( Wilson v. New Bedford, 108 Mass. 261;) and if the effect be to force the water through the earth from the reservoir to neighboring lands, causing them to produce poorer crops,...