McDougal v. Lame

• Decision Date: 04 May 1901
• Citation: 39 Or. 212,64 P. 864
• Parties: McDOUGAL et al. v. LAME.
• Court: Oregon Supreme Court

64 P. 864

39 Or. 212

McDOUGAL et al. v. LAME.

Supreme Court of Oregon

May 4, 1901

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Bill by James McDougal and another against Joseph H. Lame. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

This is a suit to enjoin the defendant from interfering with a ditch. The facts are that the plaintiffs own a ditch in Jackson county, which conducts water from Lane's creek to their land, where it is used in operating a placer mine. About 1877 one V.S. Ralls caused a ditch to be dug for a distance of about 250 feet across the land now owned by the defendant but then the property of Ralls, whereby the water of Bummer gulch was conducted into the Lane's creek ditch, and ever since that time the gulch water so diverted has been used every winter in operating the mine on the land now owned by the plaintiffs. The defendant, on July 20, 1895, secured a title to his land by mesne conveyances from Ralls, but in none of the muniments in the chain of title thereto was any reservation made of a right to conduct water across it from said gulch. It is alleged in the complaint, in substance that for more than 15 years prior to the commencement of this suit the plaintiffs and their grantors have constantly used the water of said gulch by means of the ditch constructed by Ralls in operating their placer mine, until the defendant, on December 7, 1897, unlawfully and wrongfully filled said ditch with brush and other material, thereby obstructing the flow of water therein, causing débris from the gulch to spread over plaintiffs' land, and depriving them of the use of the water. The answer denies the material allegations of the complaint, and avers that when the defendant purchased his land no ditch existed where plaintiffs now assert the right to maintain one, and that he had no notice that any one had or claimed the right to conduct water across his land from Bummer gulch. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a decree for plaintiffs as prayed for, and the defendant appeals.

A.S Hammond, for appellant.

A.E Reames, for respondents.

MOORE, J. (after stating the facts).

The only question presented by this appeal is whether the defendant, at the time he purchased his land, has such knowledge of the existence of plaintiffs' right to maintain the ditch across his premises as would amount to notice thereof. The rule is well settled in this state that whatever fact is sufficient to direct the attention of a reasonably prudent man to the prior rights and superior equities of a third party, who is a stranger to the title, so as to cause him to make inquiry in respect thereto, which, if prosecuted with ordinary diligence, must necessarily result in knowledge thereof, will be sufficient to charge a purchaser of real property, under these circumstances, with implied notice of the right and equity with which he would be affected. Stannis v. Nicholson, 2 Or. 332; Bohlman v. Coffin, 4 Or. 313; Carter v. City of Portland, Id. 339; Musgrove v. Bonser, 5 Or. 313; Lyons v. Leahy, 15 Or. 8, 13 P. 643; Tucker v. Constable, 16 Or. 407, 19 P. 13; Wood v. Rayburn, 18 Or. 3, 22 P. 521; Petrain v Kiernan, 23 Or. 455, 32 P. 158; Exon v. Dancke, 24 Or. 110, 32 P. 1045; Jones v. Gates, 24 Or. 411, 33 P. 989; Cooper v. Thomason, 30 Or. 161, 45 P. 296; Ambrose v. Huntington, 34 Or. 484, 56 P. 513.

In the light of this rule, we will examine the testimony as to such knowledge on the part of the defendant. It clearly shows that the ditch in question taps Bummer gulch at a point near his house, runs in a southwesterly direction, and, after crossing the county road, passes through his orchard, and connects with the Lane's creek ditch. The defendant, as a witness in his own behalf, testified that on July 20, 1895, when he purchased his land, no water was flowing in the gulch, and that there was no ditch leading therefrom through the premises. In answer to the question "Was there any evidence of any ditch whatever?" he replied, "No ditch inside the orchard, sure." It is quite probable that at the time the defendant purchased his land the débris from Bummer gulch had nearly filled the ditch in places through the orchard; for he testified that at that time grass was growing where it is now insisted the ditch had been constructed, and that he thereafter cut the hay which grew thereon. His testimony in respect to the ditch through the orchard being filled in corroborated by that of Clara E. Lame, his witness, and by Fred Straub, G.W. Roland, and Augustus Penning, who were called by the plaintiffs. Straub testified that the ditch was plainly marked on the ground, and that every person passing along the highway must notice it from the bridge which spanned the same. The testimony of this witness is corroborated by that of several others, and we think it is inferentially admitted by the defendant himself, in his answer...