Mathews v. Chambers Power Co.
| Citation | 81 Or. 251,159 P. 564 |
| Parties | MATHEWS v. CHAMBERS POWER CO. |
| Decision Date | 18 July 1916 |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Lane County; J. W. Hamilton, Judge.
Suit by A. C. Mathews against the Chambers Power Company to enjoin an alleged trespass upon real property. From a decree granting plaintiff the relief prayed for, defendant appeals. Affirmed.
Helmus W. Thompson and C. A. Hardy, both of Eugene, for appellant. R. S. Hamilton, of Eugene (Foster & Hamilton, of Eugene, on the brief), for respondent.
The facts are that, pursuant to the act of Congress approved September 27, 1850, Hilyard Shaw secured a donation land claim of 320 acres in section 32, township 17 south, of range 3 west in Lane county, Or. Extending from a place near the southeast corner of this land to the northwest corner thereof was a slough through which some of the waters of the Willamette river flowed during the freshets in that stream. This depression through that land was deepened in places where necessary so that water, at all stages in the river flowed in such artificial channel to the northwest corner of the claim, where it was employed in generating power which was used in operating a sawmill and a gristmill. Shaw on March 1, 1856, and thereafter, executed to the defendant's predecessors in interest deeds conveying 23 acres of his land claim described generally as beginning at the northwest corner thereof; thence east along the northern boundary 11 chains; thence south 21 chains; thence west 11 chains to the western boundary; and thence north along such boundary 21 chains to the place of beginning. After describing this strip of land, most of these deeds so executed by Shaw contain clauses which read:
"Together with the water power upon said premises with the right of way over Shaw's land claim to bring all the water that may be required to run the mills thereon and all other mills or machinery that may at any time or times be placed upon the above described premises of whatever kind or nature; also the right to dig the present raceway as deep and wide as may be necessary and to bank the dirt and stone on either side; also to include sufficient dirt and stone lying adjacent to the dams for the purpose of keeping them in repair."
The greater part of these 23 acres of land and of the water rights appurtenant thereto are now owned by the defendant which leases water power generated on the premises to be used in operating machinery in factories and mills erected thereon.
The plaintiff is the equitable owner by subsequent conveyances of a tract of the donation land claim, a part of his southerly boundary extending to and along the middle of a slough forming a portion of the millrace, which waterway at this place is much wider than in other parts. From such slough a swale leads northerly, and water when high flows therein to the Willamette river. In order properly to direct the current in the millrace, a dam about 200 feet in length has been built by the defendant across the swale. A cement spillway about 16 feet wide has also been put in the dam, which means of escape permits the surplus water at flood stages and when the mills are shut down to flow to the river. That stream since it was first known by white persons has changed its current southwesterly about a mile, infringing upon the Shaw claim. The swale referred to which is a part of the plaintiff's land is covered with brush and timber the growth, and presence of which tend to prevent the river from making further inroads upon his premises.
Contending that Shaw's grant to its predecessors in interest of such water power and right of way entitled the defendant to take from the swale any and all obstructions so that logs, trees roots, and limbs flowing thereon and over the spillway might not lodge and thereby back up the water causing damage, its managing agent caused such brush and timber growing in the swale...
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