Harbison v. City of Hillsboro

• Decision Date: 28 February 1922
• Citation: 103 Or. 257,204 P. 613
• Parties: HARBISON et al. v. CITY OF HILLSBORO.
• Court: Oregon Supreme Court

204 P. 613

103 Or. 257

HARBISON et al. v. CITY OF HILLSBORO.

Supreme Court of Oregon

February 28, 1922

Department 2.

Appeal from Circuit Court, Washington County; George R. Bagley Judge.

Action by Robert E. Harbison and another against the City of Hillsboro. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action for damages caused by the city of Hillsboro depositing sewage and waste water from its sewers into, and obstructing the flow of water in, a drainage ditch which drains plaintiffs' land. The cause was tried before the court and a jury, resulting in a verdict for plaintiffs. From a consequent judgment, defendant appeals.

The main facts disclosed by the record are substantially as follows: Plaintiffs have been the owners and in possession of the real property described in the complaint, and designated throughout the testimony as "Fair Acres," since September, 1911. The portion of plaintiffs' land, the injury to which caused this action, lies immediately south of the corporate limits of the city of Hillsboro. It consists of rich river bottom and beaver dam land, especially adapted to the growing of vegetables, and is very valuable. Immediately east of the land in question is a tract of land designated as the "Luce place," immediately west the "Crandall place," and immediately west of the Crandall place is a tract of land known as the "Corrieri or Thorne place." South of the Corrieri or Thorne tract are the lands of Jones and J.C. Hare. The Hare tract borders on the Tualatin river, and Fair Acres is approximately one-half mile from the river. Near the center, or slightly to the west of the center, of Fair Acres, is a ridge or divide. The surface waters accumulating thereon east of the divide flow down across the Luce place to the river, and the waters accumulating west of the divide flow through the ditch in question to the river across the lands of Crandall, Corrieri Jones, and Hare. A large portion of the various tracts above referred to overflow from the Tualatin river during a portion of the winter season, and by reason of the overflow and surface waters the lands must be drained in order to raise crops thereon.

In 1903, C.K. Henry, who was then the owner of Fair Acres, ran a line of levels from the divide down across the lands of the lower proprietors, to the Tualatin river, and thereafter, in company with Crandall and Thorne, the then owner of the Corrieri tract, constructed a ditch as follows: South on the Henry west line from the ditch constructed east and west on the Henry land; thence southwesterly across the Crandall and Thorne lands to the county road, and connected the same with a ditch extending along the county road and southeasterly over the lands of Mr. Hare to the Tualatin river. Each owner paid the cost of constructing the ditch on his individual land, and, during a subsequent year, all joined in the expense of deepening and clearing the outlet along the road and over the Hare land. The cost of construction paid by Henry was $24; Crandall, $21; and Thorne, $15. This ditch followed the lines of an old ditch which had been used by the parties named for many years. Henry sold Fair Acres to one Houston, who in 1911 conveyed the same to the plaintiffs. During the year 1911, the city constructed a storm sewer covering a considerable portion of the city, with the outlet at the north boundary of the Corrieri land. At the same time the city constructed a sanitary sewer system covering practically the same area as the storm sewer, the outlet being a septic disposal system constructed on land purchased from Corrieri near his north line and immediately west of the storm sewer outlet. The sewers were not completed and put into use until about the end of 1911. During the year 1912 and until some time early in 1913, the city used a horse-drawn broom with which to clean its streets. Connection with the sanitary sewer was not made compulsory until 1913. In 1913, the city purchased a street flusher and from that time on used the flusher in cleaning its streets. Since the construction of the Harbison, Crandall, Corrieri ditch, and up to the time the city of Hillsboro caused to be emptied therein the overflow of both storm and sanitary sewer systems, the ditch fully drained that portion of Fair Acres lying west of the divide. Large crops of onions were grown thereon, and as disclosed by the testimony, three acres of the land which has been made unfit for cultivation by the acts of the city of Hillsboro would produce a bountiful crop. As a result of the sewer overflow where the outlet of the sewer systems intersects the Harbison, Crandall, Corrieri ditch, large quantities of filth and debris constantly accumulated, which checked the flow of water from Fair Acres and caused it to back up and flow over the land. The plaintiffs were thereby deprived of the use of the most valuable portion of their farm, and such deprivation of use has been continuous ever since the overflow of the sewer system was poured into the ditch constructed by the farmers. The cost of maintaining the Harbison, Crandall, Corrieri ditch and keeping the same clean until the time of the alleged intrusion of the city was sustained and paid by Corrieri, as successor in title to Thorne, Harbison, as successor in title to Henry, and Crandall.

Corrieri conveyed the land to the city for a site for its septic tank in May, 1911, together with the right to overflow the water from the tank upon his tract of land, and to discharge the water and drain over his land and the right of way for an open ditch from its septic tank across his land to "and connecting with the present open ditch." Corrieri was to have the right to use for irrigation the water from the septic tank and from the storm sewer or drain. The city was to construct a ditch to connect with "the present open ditch." The written agreement further provided:

"And if, by reason of the overflow from said septic tank, the present ditch on said land is not of sufficient size to carry said additional water without injury to the lands of the parties of the first part (Corrieris), then the party of the second part (city) will enlarge said ditch at its own expense, making the same large enough to carry said surplus water from said tank, and parties of the first part are to keep said ditch cleaned out and in repair at their own expense, after the same is put into condition by party of the second part, if any change or enlargement is found necessary."

The city denied responsibility for the damage and alleged that a portion of the plaintiffs' land, by reason of imperfect drainage, had always been unfit for cultivation. It also asserted it had constructed its sewers and deposited its waters on the Corrieri land under a grant from Corrieri and that he was to take and control the same. Plaintiffs, in their initial pleading, alleged that the city connected its sewers with their ditch without enlarging its capacity, or in any way providing for the carrying off of the additional water and sewage therein. The defendant alleged that the plaintiffs are estopped from asserting that defendant unlawfully deposited water in the ditch and increased the flow without enlarging the capacity, for the reason that during April or May, 1912, the plaintiff Robert E. Harbison, acting for himself, Lucy E. Harbison, Crandall, and Corrieri, represented that the ditch used by them, and the city, and into which the Pacific Coast Condensed Milk Company deposited a large volume of water, was not large enough and of sufficient capacity to take care of the water required to flow therein; represented that the owners of the land would pay one-third of the cost of enlarging and maintaining the outlet, being from a point in the road west of the Corrieri land to the river, the defendant pay one-third and the milk company pay one-third; and that the defendant should continue to use the ditch in common with the other parties. The defendant entered into the agreement, paid $33.35, its share of enlarging the outlet, and expended $200 since that time in maintaining it, which sum was more than defendant's share and was practically all the money expended in maintaining the same.

The outlet upon the Corrieri property was clogged up with filth and dirt from the city of Hillsboro, and if the ditch upon the Corrieri place below the outlet of the city ditch was cleaned out, according to the testimony of Mr. Corrieri, it would fill up with sediment overnight either from a storm or from the flushing of the city streets. The testimony shows that Harbison did a great deal of work and spent a great deal of time in attempting to keep this ditch cleaned out and open, and that Corrieri spent a considerable amount of time for the same purpose, but that the ditch could not be kept clean and it was a hopeless task.

Benton Bowman, City Atty., of Hillsboro (H.T. Bagley, of Hillsboro, on the brief), for appellant.

Wm. G. Hare, of Hillsboro (Hare, McAlear & Peters, of Hillsboro, on the brief), for respondents.

BEAN, J. (after stating the facts as above).

At the close of plaintiffs' case the defendant moved for a nonsuit on the ground that there was not sufficient evidence to justify submitting the case to the jury, in that plaintiffs' right to use the ditch and flow waters over the Corrieri lands was but a mere license, subject to such use as might be made by the owner of the Corrieri land and his grantee; that if the use of the ditch or lands of Corrieri by Corrieri, or another by his permission interfered with plaintiffs' use, such use constituted a revocation of the license in so far as such use interfered with plaintiffs' enjoyment of the privilege; that plaintiffs had not proved a grant or easement; and that the damage, if any, had been...