Grande Ronde Elec. Co. v. Drake

• Decision Date: 03 January 1905
• Citation: 46 Or. 243,78 P. 1031
• Parties: GRANDE RONDE ELECTRICAL CO. v. DRAKE et al.
• Court: Oregon Supreme Court

78 P. 1031

46 Or. 243

GRANDE RONDE ELECTRICAL CO. v. DRAKE et al.

Supreme Court of Oregon

January 3, 1905

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by the Grande Ronde Electrical Company against A.H. Drake H.D. Drake, and another. A decree was entered dismissing the action, and plaintiff appeals. Reversed.

This is an action to condemn a right of way for a ditch across defendants' premises, and also their interest as riparian proprietors in and to the surplus water of a non-navigable stream. The complaint states that plaintiff is a corporation organized to construct ditches, and to appropriate the surplus water of Catherine creek, in Union county, to be used in generating electrical power to operate a railway, to furnish artificial light, and to propel machinery; showing a compliance with the initiatory requirements of the statute (B. & C.Comp. § 5022 et seq.), and averring a necessity for a ditch of the size and capacity stated, an intention to complete the work, a description of defendants' real property affected thereby, and an inability to agree with them as to the compensation to be paid for the injury which they will sustain. It is not alleged, however, that plaintiff is the sole owner of the land bordering on the stream from the point of the proposed diversion to the lower terminus nor that it had secured from the riparian proprietors the right to divert the surplus water in the creek between those points. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained, and, for a failure further to plead, the action was dismissed, and plaintiff appeals.

Leroy Lomax, for appellant.

T.H Crawford, for respondents.

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

The question to be considered is whether or not it was necessary as a condition precedent to the assertion of the right sought to be invoked, to allege in the complaint that plaintiff was the sole owner of all the land bordering on both sides of Catherine creek, from the head gate of the proposed ditch to the lower terminus thereof, or had secured from the riparian proprietors on that stream the exclusive right to divert and use the surplus waters thereof. A general statement of some of the provisions of the statute on which this action is based, so far as they relate to the power of a corporation to condemn rights of way for ditches, and to appropriate the surplus water of a nonnavigable stream, is deemed essential to a proper understanding of the inquiry involved. The use of water of streams in this state for the purpose of furnishing electrical power for all purposes is declared to be beneficial and a public necessity, and the right to divert unappropriated water therefrom for such use is granted. B. & C.Comp. § 5022. All corporations having title or possessory right to any land shall be entitled to the use and enjoyment of the water of any stream within the state, to furnish electrical power for any purposes, "so that such use of the same does not materially affect or impair the rights of prior appropriations." Id. § 5023. All such corporations may appropriate and divert such waters, and may condemn rights of way for ditches for carrying the same, and may condemn the rights of riparian proprietors upon the stream from which such appropriation is made, upon complying with the terms of this act. Id. § 5024. Such corporations may enter upon any land for the purpose of locating a point of diversion of the water intended to be appropriated, and upon any land lying between such point and the lower terminus of its proposed ditch, for the purpose of examining the same, and of locating and surveying the line of such ditch. Id. § 5025. When the point of diversion shall have been selected, such appropriator shall post in a conspicuous place thereat a notice in writing containing a statement of the name of the ditch and of the owner thereof, the point at which its head gate is proposed to be constructed, a general description of the course of said ditch, the size or dimensions of the same in width and depth, the number of cubic inches of water (by miners' measurement under a six-inch pressure) intended to be appropriated. Id. § 5026. Within 10 days from the date of posting such notice, such appropriator shall file for record in the office of the county clerk or recorder of conveyances, as the case may be, of the county in which said ditch is situated, a similar notice, and at the same time shall file a map showing the general route of said ditch. Id. § 5027. When such corporation shall have acquired the right to appropriate the water "in the manner hereinbefore provided," it may proceed to condemn lands and premises necessary for right of way for its ditch, not exceeding 50 feet in width. Id. § 5028. Whenever any corporation "authorized as hereinbefore provided to appropriate water and to construct and maintain a ditch," or to furnish electrical power for any purpose, and to condemn lands for right of way, is unable to agree with the owner of such lands as to compensation to be paid therefor, such corporation may maintain an action in the circuit court of the county in which the lands sought to be appropriated are situated, for the purpose of having such lands appropriated to its use, and for determining the compensation to be paid to such owner therefor. The proceedings in such action, to final determination, shall be the same as those prescribed in chapter 2 of title 41. Id. § 5029. Such corporation may also maintain an action for the condemnation and appropriation of the right to the flow of water in any stream from which it proposes to divert water below the point of diversion, vested in the owners of lands lying contiguous to such stream by virtue of their location. Id. § 5030.

An examination of the statute, the substance of which has been stated, shows that the Legislature has given corporations organized to furnish electrical power for all purposes authority to condemn...