Kesterson v. California-Oregon Power Co.

• Decision Date: 23 September 1924
• Citation: 228 P. 1092,114 Or. 22
• Parties: KESTERSON ET AL. v. CALIFORNIA-OREGON POWER CO.
• Court: Oregon Supreme Court

228 P. 1092

114 Or. 22

KESTERSON ET AL. v. CALIFORNIA-OREGON POWER CO.

Supreme Court of Oregon

September 23, 1924

In Bank.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

On rehearing affirmed.

For former opinion, see 221 P. 826.

Bean J., dissenting.

Wallace McCamant, of Portland, H. B. M. Miller, of San Francisco, Cal. (Miller, Thornton & Miller, of San Francisco, Cal., Renner, Manning & Ganong, of Klamath Falls and McCamant & Thompson, of Portland, on the brief), for appellants.

Peter F. Dunne, of San Francisco, Cal. (Morrison, Dunne & Brobeck of San Francisco, Cal., A. E. Reames, of Medford, and R. C Groesbeck and D. V. Kuykendall, both of Klamath Falls, on the brief), for respondent.

BURNETT J.

The plaintiff Kesterson, having lost by fire a sawmill, a large amount of lumber, and sundry buildings used in the operation of the mill, all of which were insured by the other plaintiffs, and who have paid the insurance, joins with the insurance companies in this action to recover damages which the complaint attributes to the defendant's negligence in the construction and maintenance of an electric power line of great potency over the premises whereon the lumber was piled. It is said that, owing to the negligence of the defendant, one or more of its wires broke, fell upon and set fire to the lumber under the line on the defendant's right of way, and resulted in the destruction thereof and of the mill.

Both Kesterson and the defendant, as the complaint avers, claim under common grantors, the former by a lease dated March 5, 1917, and the latter by an instrument dated May 2, 1912, in which it is denominated the second party, and F. H. Downing and T. J. Downing with their wives are named as parties of the first part. Omitting the recital of the parties, the attesting clause, signatures and acknowledgments, the writing of May 2, 1912, under which the defendant claims, reads thus:

"Witnesseth that the said parties of the first part for and in consideration of the sum of one dollar gold coin of the United States to them in hand paid, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, and convey to said party of the second part a right of way for its pole and wire line cross that certain real property, situated in Klamath county, Or., and more particularly described as N. 1/2 of N.E. 1/4, S.W. 1/4 of N.E. 1/4 and the W. 1/2 of S.E. 1/4 of section 5. T. 41 S., R. 8 east Willamette meridian, Oregon. Said right of way to be 50 feet wide, 25 feet on the west side and 25 feet on the east side of the pole and wire line as now surveyed through said premises.

"Said second party shall have the right to dig holes for and erect its poles, cross arms, and wires along said line and to maintain the same, and to cut all brush and trees therefrom, and at all times to enter said premises and to do what is reasonable, proper, and necessary thereon; and to maintain gates at all fences crossed by said lines and keep private locks thereon, and to permit no one, except employés of the said party to enter therein. Said first parties, however, reserving the right to cultivate said right of way and otherwise use and enjoy the same. The party of the second part agrees to reset any pole or poles, the moving of which may be necessary on account of mining operations by said parties of the first part, on notice duly given. * * *

"It is further understood and agreed that the party of the second part agrees to pay to the party of the first part any reasonable damage sustained by the party of the first part caused to growing crops or to live stock caused by break in wires or by traveling over said right of way. The party of the second part further agrees to wire the buildings of the party of the first part by wiring the house for 10 lights and two lights for the barn, to his entire satisfaction."

In substance the contention of the plaintiffs is that Kesterson's lease of March 5, 1917, included the land composing the right of way described in the document of the earlier date of May 2, 1912; that, as permitted by his lease, he piled his lumber on that right of way, where afterwards it was burned as stated; and consequently, that the defendant is liable as for negligence.

On demurrer to the complaint, wherein both the instruments appear as exhibits, the defendant maintains that, in placing his lumber on the right of way as created by the writing of May 2, 1912, Kesterson was a trespasser to whom, or to whose property, the defendant owed no duty further than to avoid the infliction of willful or wanton injury, and that, as the complaint does not charge such a tort, it does not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer and ultimately dismissed the action, as the plaintiffs did not amend or further plead. They therefore appealed. After a hearing in Department No. 2 of this court, the judgment appealed from was reversed, Mr. Justice McCourt writing the opinion reported in 221 P. 826. Subsequently, a rehearing was granted, the cause was reargued before the whole court, and it has had our renewed consideration.

In treatment of the subject in hand, the right of the defendant by virtue of the instrument of May 2, 1912, will be considered as an easement and not as an estate in fee simple. Relating to easements, Mr. Justice Bean, pronouncing judgment in Fendall v. Miller, 99 Or. 610, 615, 196 P. 381, 383, said:

"If the grant is specific in its terms, it is decisive of the limits of the easement. On the other hand, where the easement is not specifically defined, the rule is that it need be only such as is reasonably necessary and convenient for the purpose for which it was created."

In Ruhnke v. Aubert, 58 Or. 6, 11, 113 P. 38, 40, Mr. Justice McBride was considering the same subject connected with a right of way for a ditch. The easement was expressed in a clause in a deed as "the right to use water therefrom according to their interest." After imputing to this language the effect of passing naturally and ordinarily an inheritable estate, the opinion goes on to say:

"And plaintiffs have the laboring oar to establish the proposition that some other or less estate was intended, and this must be done, not dehors the deed, but from the deed itself."

With this canon of construction in mind, let us approach the interpretation of the paper delineating the rights of the defendant with a view of ascertaining its corresponding duty to Kesterson and those claiming under him by subrogation. It is not a question of how little the enjoyment of the grantor's fee-simple estate is to be restricted, as if we were considering a case "where the easement is not specifically defined," as Mr. Justice Bean phrases it in Fendall v. Miller, supra. Here we have a deed under seal which bargains, sells, and conveys a right of way "50 feet wide, 25 feet on the west side, and 25 feet on the east side of the pole and wire line as now surveyed through said premises," meaning the larger tract of 200 acres owned by the grantors. This deed "is specific in its terms" and "decisive of the limits of the easement." Fendall v. Miller, supra.

Precedents treating of vague and indeterminate easements, resting in parol or prescription, are not applicable here. The parties have put into their deed the exact rule to govern their relations to each other, and by that they must stand or fall. We "reason not the need" of the defendant nor attempt to show how it could operate its line under conditions less favorable than those prescribed in its deed. It is confessedly entitled to all the privileges and immunities flowing from that deed, and by it must be judged.

At the outset, we note that it is a grant of a "right of way" or passage upon which the defendant has at all times the right to enter and "do what is reasonable proper, and necessary thereon." We cannot conceive that any ordinary power line will stand perpetually without...