Hunter v. Grande Ronde Lumber Co.

• Decision Date: 15 July 1901
• Citation: 39 Or. 448,65 P. 598
• Parties: HUNTER v. GRANDE RONDE LUMBER CO.
• Court: Oregon Supreme Court

65 P. 598

39 Or. 448

HUNTER v. GRANDE RONDE LUMBER CO.

Supreme Court of Oregon

July 15, 1901

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by M.C. Hunter against the Grande Ronde Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff is the owner of certain lands through which the Grande Ronde river, a natural water course, flows and she charges by her complaint that defendant well knew the character and capacity of said river for floating logs, and that their transportation therein required great care and skill to prevent them from being carried upon the adjoining lands, but that, notwithstanding such knowledge, it did, on or about February, 1898, wrongfully and negligently place in such river a greater number of logs than could be floated thereby, and did also wrongfully and carelessly fail neglect, and refuse to keep the channel clear and open, or to prevent the logs from forming jams, or to break the jams thus formed within the stream along the lands of the plaintiff, and so negligently, carelessly, and unskillfully banked and drove said logs down the stream that they dammed it up, thereby causing the water thereof to overflow its banks, and flood plaintiff's lands, washing thereon a large number of said logs and great quantities of sand gravel, driftwood, and other débris, to her damage. The answer puts in issue all these allegations, and sets up affirmatively that the Grande Ronde river is a natural water course of suitable capacity for floating of logs during the winter and spring months of each year, and " that logs placed upon the banks of said stream and in the channel thereof upon the lands described in plaintiff's complaint were placed there under parol license, and with the full knowledge, consent, and approval of the plaintiff and her agents, and at all of the times mentioned in plaintiff's complaint plaintiff well knew the quantity of logs in said pile, as well as the character of said stream, and that said logs could only be floated down the channel of said stream after the ice was out of the channel thereof. Therefore plaintiff is, and ought to be, estopped from claiming damages on account thereof." A denial of these allegations on the part of the plaintiff completed the issues in the cause. The verdict and judgment being for plaintiff upon the trial thereof, the defendant appeals.

J.A. Fee, for appellant.

T.H. Crawford, for respondent.

WOLVERTON, J. (after stating the facts).

At the trial of the cause the court adopted the theory that negligence was not a necessary element of plaintiff's case, and refused to instruct the jury, at the request of the defendant, that, before she could recover, she must establish the fact that defendant was guilty of negligence in piling the logs within, or running the same down the channel of, the stream. In doing this the court has followed the reasoning employed in Haines v. Welch, 14 Or. 319, 12 P. 502. We are satisfied, however, after careful consideration, that the doctrine of that case is unsound. Nor is it sanctioned by the later case of Haines v Hall, 17 Or. 165, 20 P. 831, 3 L.R.A. 609. By the latter it was determined that Anthony creek-the same stream involved in the former-was not navigable for floating logs. That was the principal question litigated by the former, and the one involving the doctrine here adopted was only incidental, if it may be said to be within the issues. The right of the public to run logs in a floatable stream is concurrent with that of the riparian owner, and each is entitled to the reasonable enjoyment thereof, without unnecessary interference from the other. A reasonable enjoyment signifies...