Hallock v. Suitor

• Decision Date: 12 March 1900
• Parties: HALLOCK v. SUITOR.
• Court: Oregon Supreme Court

60 P. 384

37 Or. 9

HALLOCK v. SUITOR.

Supreme Court of Oregon

March 12, 1900

Appeal from circuit court, Polk County; H.H. Hewitt, Judge.

Action by Mary E. Hallock against Robert Suitor. Decree for defendant, and plaintiff appeals. Modified.

This is a suit to enjoin the defendant from maintaining and operating a dam constructed by him on plaintiff's premises in Polk county, and to restrain him from interfering with a water power thereon. It appears that La Creole creek flows in an easterly direction through said premises, and empties into the Willamette river. The land drained by the headwaters thereof is covered with valuable timber, which, cut into sawlogs and put into the creek, can only be floated therein in its natural stage during the winter freshets; but by means of dams provided with sluiceways of sufficient capacity, and so arranged as to permit logs to pass through, water can be raised at all times, except in the summer, to a sufficient height, so that when suddenly liberated it flushes the creek carrying the logs to market. Plaintiff's husband about 1867 built a sawmill on the premises now owned by her, which was operated by water power secured from said creek; and having blasted rocks and removed obstructions from the bed thereof, he was able to supply his mill with logs, from which he manufactured lumber, and upon his death plaintiff succeeded to his estate in the premises, and continued the operation of the mill. The defendant about 1896 built a sawmill on said creek below plaintiff's mill, and finding the head of water raised by two dams constructed by him insufficient to float logs thereto, constructed a dam in the creek on plaintiff's land, and is operating the same thereon. Plaintiff alleges, in effect, that the closing of the dam built by the defendant on her land retards the flow of the water in the creek to such an extent as to hinder the operation of her mill in the summer, and that after the dam is filled the sudden opening of the gate causes the accumulated water to overflow her land, destroying the banks of the stream, and scattering logs and timber over her premises. The defendant, after denying the material allegations of the complaint, avers, in substance, that he built the dam upon plaintiff's land with her knowledge and consent. The reply having put in issue the allegations of new matter in the answer, a trial was had, and the court from the testimony taken before it, found the facts, in effect, as hereinbefore stated, and, as conclusions therefrom, that defendant was entitled to float sawlogs in said creek through plaintiff's premises to his mill, provided he did so without damage to her property; that he had the right to operate the three dams so constructed by him, retaining the water raised thereby for a reasonable length of time, for the purpose of floating sawlogs in the creek when the water therein was in its natural condition; and that the plaintiff was entitled to the free use of said creek to float sawlogs to her mill, and to use the water in the stream as theretofore in operating her mill. And, a decree having been rendered in accordance with such findings, the plaintiff appeals.

R.R. Duniway, for appellant.

J.J. Daly and E.T. Coad, for respondent.

MOORE J. (after stating the facts).

It is contended by plaintiff's counsel that La Creole creek is not a navigable stream, and hence the court erred in decreeing defendant the right to float sawlogs therein through their client's...