Miller v. City of Woodburn
| Decision Date | 23 December 1930 |
| Citation | 294 P. 349,134 Or. 536 |
| Parties | MILLER v. CITY OF WOODBURN. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.
Suit by N. Miller against the City of Woodburn. From a decree dismissing the suit, plaintiff appeals.
Affirmed.
W. Lair Thompson, of Portland, and W. C. Winslow, of Salem, for appellant.
Allen G. Carson, of Salem, and Blaine McCord, of Woodburn (Carson Carson & Carson, of Salem, and Blaine McCord, of Woodburn, on the brief), for respondent.
This is a suit to enjoin the defendant city of Woodburn from emptying sewage into a small, sluggish creek or slough which flows through the land of plaintiff. Aside from the alleged pollution of the creek, plaintiff complains that its natural flow was materially increased to his damage. The controversy has been slowly and tediously working its way through the courts for years and, no doubt, has become vexatious to all parties concerned. In February, 1924 plaintiff commenced an action at law to recover damages against the city for interference with his rights as a riparian owner. Soon thereafter the city instituted a condemnation proceeding to acquire the right thus to use the stream, alleging that the damage sustained by plaintiff was not in excess of $10. The city, however, failed to prosecute such action, and plaintiff was obliged to proceed with his action for damages, which finally terminated in a verdict and judgment in favor of the city. Upon appeal the judgment was reversed on account of erroneous instructions and the case remanded for a new trial. Miller v. City of Woodburn, 126 Or. 621, 270 P. 781. While the law action was pending, the present suit was instituted, in August 1925, for injunctive relief. The action for damages was never retried. In the present suit the trial court, after a view of the premises and the taking of additional testimony, in October, 1929, finally decreed that plaintiff was not entitled to enjoin the city, and therefore dismissed his suit. Hence this appeal.
The city of Woodburn has a population of approximately 1,800 people. It obtains its water from three wells which are pumped to a storage tank having a capacity of 60,000 gallons. There are three units of the sewer system, the first of which was constructed in 1910. Individual septic tanks are used and, near the outlet of each main trunk sewer, there is a large septic tank into which the sewage passes before it is emptied into one of the tributaries of Ferrier creek which flows through plaintiff's premises. In addition to the septic tanks, the city had constructed at the time of the commencement of this suit two filtration beds which materially added to the sewage disposal system. These filtration beds were constructed in accordance with the plans and specifications provided by the state board of health. It appears from the record that the sewage from the greater number of the homes is disposed of by individual septic tanks which have no connection with the city sewer system. The stream also affords drainage for numerous barnyards, a large cannery, a slaughterhouse, and a cemetery, which unquestionably would tend to pollute the water independently of any sewage which was emptied into the creek by the city.
The property in controversy--which has been owned by the plaintiff since 1874--is located along Ferrier creek about two miles north of the city of Woodburn. Plaintiff refers to it as beaver dam land, but we think it may be more accurately described as swamp land. It has never been under cultivation, but is covered with a dense growth of underbrush partly submerged by water. There is no dwelling house or any other kind of building on it. It may be stated, however, that if the land were properly drained and reclaimed, it would be particularly adapted for garden truck purposes.
Plaintiff claims that this land, which witnesses variously estimated comprised from twenty to fifty acres, is capable of being reclaimed and put in a high state of cultivation, but that he cannot do so by reason of the increased flow of water caused by the act of the defendant city. He also contends that the sewage of the city has rendered the water unfit for human consumption or domestic purposes. On the other hand, the city asserts that the small amount of water which it empties into Ferrier creek has not materially injured or affected the property of the plaintiff. Furthermore, it contends that...
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