Ewing v. Rhea

• Decision Date: 26 November 1900
• Citation: 62 P. 790,37 Or. 583
• Parties: EWING v. RHEA.
• Court: Oregon Supreme Court

62 P. 790

37 Or. 583

EWING v. RHEA.

Supreme Court of Oregon

November 26, 1900

Appeal from circuit court, Morrow county; S.A. Lowell, Judge.

Action by W.B. Ewing against C.A. Rhea. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

This is a suit to enjoin interference with an irrigating ditch. It is substantially alleged in the complaint that plaintiff is in possession, and entitled to the possession, of certain arid land in the N. 1/2 of section 17, in township 2 N., of range 23 E., in Morrow county, Ore.; that in 1891, at an expense of $510, he constructed a ditch from the bank of Willow creek at a point in the north half of section 20, in said township and range, in a northerly direction, across the south half of said section 17, to his premises, whereby he diverted water from said creek, which was thereafter continuously used except as hereinafter stated, in irrigating his land; that when the ditch was dug the land in said section 20 was claimed, under the timber culture act, by one T.H. Rhea, who thereafter secured from the United States a patent therefor and on March 31, 1898, conveyed it to the defendant; that in 1891 the south half of said section 17 was claimed, under acts of congress, by the Northern Pacific Railroad Company which, in 1896, transferred all its interest therein to the Northern Pacific Railway Company, and the latter, in 1898, agreed to sell and convey said land to the defendant, who is in possession thereof; that T.H. Rhea and the Northern Pacific Railroad Company knew of and acquiesced in the construction of said ditch, and that they and the Northern Pacific Railway Company at all times stood by and saw plaintiff, who relied upon such knowledge and acquiescence, expend large sums of money in constructing said ditch and in improving his premises; that notwithstanding the defendant, prior to securing T.H. Rhea's deed, knew that said ditch had been constructed, and that the water conducted therein had been continuously used in irrigating plaintiff's land, he, in April, 1898, willfully destroyed said ditch south of plaintiff's land, thereby depriving him of the use of the water. The court, having sustained a demurrer to the complaint, dismissed the suit, and plaintiff appeals.

S.A.D. Gurley, for appellant.

C.E. Redfield, for respondent.

MOORE J. (after stating the facts).

The question to be considered is whether a complaint alleging a passive acquiescence by defendant's predecessors when they knew that plaintiff was expending large sums of money in making valuable improvements upon his land while relying upon the faith of the implied license to maintain said ditch which, if revocable, would render such improvements valueless, states facts sufficient to constitute a cause of suit. Plaintiff's counsel contends that the complaint is sufficient in this respect, and that the court erred in sustaining the demurrer; and relies upon the case of Curtis v. Water Co., 20 Or. 34, 23 P. 808, 25 P. 378, 10 L.R.A. 484, in which it appears that in 1865 the company's predecessor, with the consent and assistance of one Green Arnold, built a dam across a creek, and laid a pipe therefrom, by which water was diverted and conducted to the city of La Grande for the use of its inhabitants. Mrs. Curtis, the plaintiff therein, in 1876 acquired by mesne conveyances from Arnold the title to a tract of land through which said creek flowed, and in 1887 the company, without her express consent, built a new dam across the creek about 1,000 feet above the old one, and, taking up the conduit, relaid it from the new dam, and resumed the supply of water thereby. Mrs. Curtis having instituted a suit to enjoin the diversion, it appeared at the trial that the company changed the point of diversion under a claim to the use of the water which it believed was well founded; that Mrs. Curtis, with knowledge of such claim, stood by without asserting any right to have the undiminished flow of the stream continue in the natural channel until she had seen the company expend large sums of money in improving its property, which, without the use of the water at the new point of diversion, would be rendered valueless, whereupon it was held that by her passive acquiescence she was estopped from asserting any right to the uninterrupted flow of the water in the creek. In Garrett v. Bishop, 27 Or. 349, 41 P. 10, it was held that the evidence of an irrevocable license should be clear and convincing, and show a permission to do the particular act performed, or some participation in its execution by the alleged licensor. In Lavery v. Arnold, 36...