Miller v. City of Woodburn

• Decision Date: 02 October 1928
• Parties: MILLER v. CITY OF WOODBURN.
• Court: Oregon Supreme Court

270 P. 781

126 Or. 621

MILLER v. CITY OF WOODBURN.

Supreme Court of Oregon

October 2, 1928

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by N. Miller against the City of Woodburn. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an action for damages to real property. The plaintiff is the owner of a tract of level land situate in the vicinity of the city of Woodburn, a municipal corporation and defendant herein. Plaintiff asserts that 40 or 50 acres of this land is what is locally known as beaver dam land; that it is wet and not susceptible of cultivation, but, when reclaimed, is of great value. He avers that he intended to reclaim this land but that he was defeated by the wrongful acts of the defendant. Plaintiff alleges that an adequate drainage system to reclaim these lands requires the use of that certain natural water course designated in his complaint as Ferrier creek, a creek or slough running through the city of Woodburn and thence in a northwesterly direction through the lands of plaintiff above referred to as beaver dam. He alleges that the sewer system maintained by the defendant city caused water that is contaminated, unhealthy, obnoxious, and unclean to flow down Ferrier creek and through his premises; that because the sewer system maintained by the defendant has so greatly increased the flow of waters down Ferrier creek, he has been unable to drain the lands above mentioned, and has thereby lost the entire use and rental of such lands; that it was his intention to reclaim his beaver dam lands and rent the same for the growing of farm products and truck gardening, but that he was prevented therefrom by such overflowage.

The defendant city filed an answer denying the allegations of the complaint, and for a first further and separate answer averred that the action set forth in the complaint did not accrue within two years immediately preceding the commencement thereof. For a second further and separate answer, after averring, among other things, the construction of its sewer system, the defendant alleged:

"That the drainage of and from each and every residence and business block and all drainage whatsoever, except such street drainage, within said corporate limits, and connected with said systems, during all the times herein mentioned, passed through a separate and individual permanent septic tank, and that no drainage from any residence or business property or drainage whatsoever except such street drainage, passed into such drainage system, or any of them, during any of the times herein mentioned, excepting through such septic tanks; that, in addition to the individual septic tanks hereinbefore mentioned, said drainage systems so laid out and established in the years 1917 and 1923 * * * were, during all the times herein mentioned, each connected with a large permanent septic tank near the outlet thereof, and that * * * all the contents of said systems * * * passed through said large septic tanks before being discharged from and out of such systems. * * *"

Defendant further alleged that the outflow from its drainage systems in no way accelerated or increased the flow of Ferrier creek through or upon any portion of plaintiff's land, nor in any way polluted the waters of that creek. Plaintiff replied denying each and every allegation of the answer except as alleged in his complaint. On trial defendant had verdict, and from the judgment pronounced thereon plaintiff appeals.

W. Lair Thompson, of Portland, and W. C. Winslow, of Salem (McCamant & Thompson, of Portland, on the brief), for appellant.

Blaine McCord, of Woodburn, and Allan G. Carson, of Corvallis (Carson & Carson, of Salem, on the brief), for respondent.

BROWN J. (after stating the facts as above).

Plaintiff earnestly contends that the court should have directed a verdict in his favor. His particular grievance is that, by reason of the acts of the defendant in increasing the flowage of waters in Ferrier creek, he lost the use and rental of certain lands which he had intended to reclaim and let for the purpose of agriculture and horticulture.

Plaintiff is a riparian owner and is of course entitled to the rights and privileges of such owner. It is likewise the defendant's right and privilege to make reasonable use of that slow, sluggish stream called Ferrier creek. However, a municipal corporation has no more right to pollute the waters of a stream, or to injure the lands of another, than has a natural person. Much of the testimony in the cause, some of the court's instructions, and the pleadings make reference to the pollution of the waters of Ferrier creek. Much evidence was adduced by plaintiff relating to the defendant's emptying its sewage into Ferrier creek, and to the impurity of the waters that flowed down that stream. And the defendant, by its cross-examination of witnesses relating to the custom of disposing of sewage as practiced by certain municipal corporations along the Willamette river, likewise went beyond the issues made by the pleadings.

Custom is not a defense in this case, and, if it were, it could not be relied upon unless pleaded. Simms v. Sullivan, 100 Or. 487, 198 P. 240, 15 A. L. R. 678. The plaintiff's cause of action is founded upon the injury to his real property brought about by the increased flow of the waters of Ferrier creek to such an extent that he has been prevented from draining the lands and thus making them fit for cultivation. Plaintiff does not pretend that he has used or that he contemplates the use of, the waters of that creek for domestic purposes, or for manufacturing or irrigation, or that the pollution has in any manner affected his property, convenience or happiness. The increase in flow, he asserts, has resulted from the act of defendant in pumping water out of wells and discharging it through its sewer, thus flooding plaintiff's beaver dam lands. He asserts, and his assertion is supported by the record, that some of defendant's own witnesses testified that a portion of the water pumped from the wells of the city of Woodburn is emptied through the sewers of the city into Ferrier creek, and that the natural flow of that creek is increased thereby. But there is other testimony to the effect that the city's pumping plant has not increased the flow...