Marks v. Twohy Bros. Co.

• Decision Date: 11 January 1921
• Citation: 194 P. 675,98 Or. 514
• Parties: MARKS v. TWOHY BROS. CO.
• Court: Oregon Supreme Court

194 P. 675

98 Or. 514

MARKS v. TWOHY BROS. CO.

Supreme Court of Oregon

January 11, 1921

In Banc.

Appeal from Circuit Court, Crook County; J. U. Campbell, Judge.

Action by William Marks against the Twohy Bros. Company. Judgment for the plaintiff, and defendant appeals. Reversed.

This is an action for damages. The cause was tried by the court and a jury, a verdict being rendered in favor of plaintiff. From a judgment entered thereon defendant appeals.

By stipulation of the parties one brief is submitted for five cases, namely: William Marks v. Twohy Bros. Co. (this case); Powell & Powell v. Twohy Bros. Co., 194 P. 685; T. H. Lafollett v. Twohy Bros. Co., 194 P. 685; E. T. Slayton v. Twohy Bros. Co., 194 P. 682; and Morgan & Allen v. Twohy Bros. Co., 194 P. 686. The several cases arise out of the following facts, as substantially stated in the briefs:

In the year 1915, there was organized under the provisions of chapter 14, title 41, of Oregon Laws a municipal corporation in Crook county, Or., known as the Ochoco irrigation district, the objects and purposes of which were to dam Ochoco creek, a tributary of Crooked river, and thereby create a reservoir and impound therein the waters of Ochoco creek, and distribute such waters through canals and ditches for irrigation purposes. At the time of the organization of the district there were in existence two irrigation ditches or canals which received their supply of water from Ochoco creek, one known as the Table Land ditch, sometimes referred to as High Line ditch, and the other Combs-Slayton ditch. The intake of the Table Land ditch was about a mile upstream or east of the dam site, from which point the ditch followed the north bank of the creek until it reached a bench or table land north of Ochoco creek, and thence was constructed along the bench and served the lands thereon with water. The intake of the Combs-Slayton ditch was about one-half mile downstream from the dam site, from which point the ditch followed the low lands on the north side of Ochoco creek and supplied such lands with water.

In 1918, and the year prior thereto all of the plaintiffs were users of water for irrigation purposes from Ochoco creek, all of them utilized what is known as the Table Land ditch to convey water from Ochoco creek to their irrigated lands, and three of the plaintiffs also used the Combs-Slayton ditch for the purpose of conveying water to a portion of their irrigated lands. In cases where water was conveyed through both the Table Land ditch and the Combs-Slayton ditch, two causes of action are set forth in the complaint; but in the cases where water was used through the Table Land ditch, only one cause of action is stated. Except in this regard the pleadings in all of the cases are practically the same. The Ochoco irrigation district entered into a contract with the defendant, whereby it agreed to perform the work and furnish the material necessary in the construction of the dam and canal for the district.

Seven cases were instituted against the defendant. In three of these, namely, O'Neil v. Twohy Bros. Co., 190 P 306, the Marks, and Powell & Powell Cases, the owners of lands supplied by the Table Land ditch alone are claiming damages to those lands. In one, the Cram & Cram Case, the owner of lands was supplied by the Combs-Slayton ditch alone. In the latter case the jury found a verdict in favor of the defendants. Three of the actions were by owners of land supplied by both the Table Land ditch and the Combs-Slayton ditch, in which two separate causes of action are stated in the complaint. These are the Lafollett, Slayton, and Morgan &amp Allen Cases. The first causes of action in the three last-named cases were to recover damages to the lands supplied by the Table Land ditch, caused by facts substantially the same as alleged in the O'Neil, Marks and Powell & Powell Cases. The first causes of action in the Lafollett, Slayton, and Morgan & Allen Cases are the same relating to the Table Land ditch. The second causes of action set out in the complaint in the three last-named cases are to recover damages to lands supplied by the Combs-Slayton ditch and, as asserted in defendant's brief, were caused by the facts alleged practically the same as in the Cram & Cram Case.

Complaint in the Marks Case.

Plaintiff alleged the corporate character of the defendant, the organization of the irrigation district, and the object and purposes thereof; the entering into the contract by the district with the defendant for the construction of the dam and canal; the preparation of plans therefor; the commencement and continuation of the work by defendant; and the plaintiff's ownership of certain lands in Crook county, semiarid in character, but capable of producing agricultural crops when irrigated. Plaintiff further avers that he is the owner of a vested water right, dating from the year 1909, appurtenant to the lands, which water is taken from Ochoco creek through a ditch known as the Table Land ditch in sufficient quantity to properly irrigate all of his lands which are under cultivation, and since 1909, up to 1918, the plaintiff and his predecessors in interest have continually enjoyed and used such water right, and have irrigated such lands and raised profitable crops thereon; that during the months of March, April, and May there was sufficient amount of water in Ochoco creek to irrigate plaintiff's lands, and was necessary therefor; "and during all of said time the plaintiff had the right to the use of said ditch for the purpose of conveying water therein from said creek to his said lands for the purpose of irrigating the same and the crops thereon, and the defendant at that time had full notice and knowledge of plaintiff's said rights." Plaintiff then states:

"That in the prosecution of said work and the construction of said dam and canal leading therefrom it was unnecessary for the defendant to interrupt or prevent the flow of the water from said Ochoco creek to the lands of the plaintiff during said months, but by using ordinary care and diligence the defendant could have prosecuted said work and constructed said dam and canal leading therefrom in such manner and at such time as to permit the water to be diverted from said Ochoco creek and carried and conveyed to the lands of the plaintiff and used in irrigating his lands either through the Table Land ditch or by temporary flume constructed for such purpose, or by the completion of such portion of said canal below said dam as would have permitted said water to flow therein to the lands of the plaintiff, but the defendant failed to use ordinary care or diligence in the prosecution of said work or the construction of said dam or canal, and failed to do any of the things above specified, but, on the contrary, the defendant went upon said Table Land ditch and tore up and destroyed the same, and failed to construct an adequate temporary flume, or to complete the necessary portion of said canal to permit the water to be diverted from said creek, and conveyed therein to the lands of the plaintiff for irrigating the same, and defendant willfully, purposely, carelessly, and unnecessarily in the performance of said work interfered with, interrupted, obstructed, and prevented the water in said creek from flowing to the lands of the plaintiff, and willfully, purposely, and unnecessarily obstructed the flow of said water to plaintiff's lands, and caused the same to flow elsewhere than upon the lands of the plaintiff, and appropriated and converted said water to the defendant's use, whereby said water was prevented from flowing to or upon the lands of the plaintiff, and the plaintiff thereby was deprived of the use thereof for irrigating his crops in said months of March, April, and May, 1918, whereby the crops upon plaintiff's land were rendered less abundant, and were stunted and retarded in their growth, and were damaged and injured and lessened in quantity and depreciated in quality, and were permanently injured and damaged, all to the loss, injury, and damage of the plaintiff in the sum of $1,700."

The defendant by its answer admitted the incorporation of defendant, the organization of the irrigation district with its objects and purposes, plaintiff's ownership of the land, and denied all the other material allegations of the complaint. It then set forth two separate defenses, in effect, the organization of the irrigation district, its objects and purposes; that the lands of plaintiff are within the district; that there was no other way of conveying water to plaintiff's lands than through the Table Land ditch. It then averred as follows:

"On November 21, 1917, the plaintiff, in consideration of the sum of $10,000 paid by said Ochoco irrigation district, made, executed, and delivered to said Ochoco irrigation district a deed of conveyance of all his right, title, and interest in and to said Table Land ditch, which deed was witnessed by two witnesses, and was duly acknowledged by said plaintiff and the same was duly recorded at page 109 of Deed Book 40 of the Records of Crook County, Or.; and thereupon said Ochoco irrigation district entered upon and into possession of said Table Land ditch and into possession of lands adjoining said Ochoco creek, and after preparing plans therefor and submitting the same to the state engineer of Oregon and securing his approval thereof, constructed a dam across said Ochoco creek and across said Table Land ditch, whereby the waters which had theretofore flowed in said river and in said ditch were dammed up and impounded and ceased to flow through the same, which said dam and the construction thereof is the same dam and construction referred to and complained of in the amended complaint."

Continuing defendant...