Minto v. Salem Water, Light & Power Co.

Decision Date28 December 1926
Citation250 P. 722,120 Or. 202
PartiesMINTO v. SALEM WATER, LIGHT & POWER CO.
CourtOregon Supreme Court

Department 1.

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

Suit by D. C. Minto against the Salem Water, Light & Power Company. From a decree of dismissal, both parties appeal. Reversed and cause remanded, with directions.

This is a suit to enjoin a continuing trespass. The defendant company is a corporation engaged in the business of supplying water to the city of Salem and its inhabitants. It is the successor in interest of the Salem Water Company, a corporation which likewise operated for many years. Deeming the water supply inadequate for a rapidly growing city, the Salem Water Company in 1897 secured from John Minto and wife plaintiff's parents and predecessors in interest, an easement which, so far as material, is as follows:

"Witnesseth * * * The full, free, and exclusive right of way to lay down, use, and repair pipes for conveying water, and to construct, use, maintain, and repair wells, cisterns, and filtering cribs in and upon the following described lands and premises, to wit: (Description) * * * containing 12.67 acres of land more or less, * * * and also upon and across all lands formed by the accretions of the Willamette river north of the meander line of the government survey on the south side of the said Willamette river in (description); a plat of said lands being for greater certainty of description hereto annexed and made a part of this grant of right of way.

"This grant of right of way is made upon the consideration that the said party of the second part (Salem Water Company) shall furnish the said parties of the first part (Minto et ux.), water free of charge for the use of their residence through a one and one-half inch pipe, said pipe to be furnished by said parties of the first part and to be connected with the said Salem Water Company's mains wherever the said parties of the first part shall designate, and that the said party of the second part shall place all pipes, wells, cisterns, and filtering cribs which may hereafter be laid, or constructed in or upon said land far enough below the surface so that they will in no way interfere with the cultivation of the soil or with transportation over said land, or damage the said parties of the first part, either in transportation over or in cultivation of the same."

The 12.67-acre tract, designated on the plat referred to in the above instrument as a "gravel bar," is an island separated from the larger tract and mainland by a narrow channel of shallow water over which at one time was constructed a bridge. The other land included in the grant was described by general reference and is designated in the record as the 50-acre tract. It is far more adapted to cultivation and has a greater elevation than the smaller tract. Since this easement was granted, the island has, by accretions from the Willamette river, doubled in size. For several months during the year the island is entirely submerged. It is covered to a large extent by scrubby willows and brush. It seems that both tracts, by reason of their close proximity to the city of Salem, are valuable chiefly on account of sand and gravel rentals.

After having acquired the easement, the Salem Water Company, in 1898, in order to obtain a more adequate supply of better water, constructed on the island a filtering crib about 10 feet below the surface of the ground. When the water from the Willamette river was at a comparatively high stage, it covered this land, and readily filtered through the gravel and sand into the crib, but when the river, during the summer months, receded, ditches were dug to run the water into a pond over the crib. The pond covered almost 3 acres of land. From this filtering crib the water was drawn by suction pipes to the company's station at Salem, where it was chemically treated before being used by consumers. This process was followed until 1907, when it was deemed advisable and necessary by the company, on account of increased consumption, to install a pump and electric motor on the extreme western side of the island, whereby the water was pumped into the pond. For protection to the pump and motor, a small shed was erected over them. At this time an additional crib was also constructed. This latter system of obtaining water has been followed to the present time.

In 1911 the Salem Water Company sold and assigned to the defendant company all its "rights, privileges, and easements" in and to that "certain gravel bar in the Willamette river above said city of Salem, commonly known as the Minto gravel bar; * * * subject, however, to all the requirements restrictions, and conditions" set forth in the instrument around which this controversy centers. Contention arose as to the right of the defendant so to use the land under the terms of its grant, and, being unable to agree upon the terms of purchase, condemnation proceedings were instituted in 1920 to acquire the entire island. The cause was put at issue, and a verdict was returned, fixing the value of the land at $18,000. Defendant did not, under the statute, elect to take the property, and, upon motion of defendant, the proceedings were dismissed.

Plaintiff complains that the use to which his property is being subjected by defendant is in excess of the rights of the latter under the terms of the deed of easement, and constitutes a continual trespass to his irreparable damage and injury. Plaintiff urges that no right exists to use the property in question for surface filtration, and that all pipes, cisterns, cribs, and other structures must be below the surface of the ground so as not to interfere with the cultivation or use of the land for transportation purposes. Plaintiff also alleges, in substance, that, on account of the wrongful acts of defendant in carrying on its present operations, "no shrubbery, trees, or vegetation is permitted to grow," and that, if the surface of the land were not disturbed it would build up by accretion, and would eventually be suitable for cultivation. It is also alleged that plaintiff is "prevented from establishing means of transportation over the surface of said bar for the purpose of removing gravel therefrom and * * * from leasing said lands for gravel excavation."

Defendant contends that, in the light of the situation of the parties and all of the facts and circumstances attending the execution of this instrument, it was the intention of the grantor that the restrictions therein specified should apply only to the 50 acre tract and not to the island, since the latter "was not then and apparently never would be susceptible of either transportation or cultivation," that it was the intention of plaintiff's predecessors in interest to convey to the Salem Water Company and its successors in interest the right so to construct its system on the island as to enable it forever to furnish its patrons with pure and wholesome water, and that it will not be possible for it so to do unless permitted to carry on its present operations. It is alleged that, notwithstanding the fact that the land upon which defendant has for many years maintained its pond or filtration bed has no "existing value to plaintiff, * * * he is threatening to remove gravel from said portion of said island, and to contaminate the water by running live stock thereon, and, if permitted so to do, said acts and conduct will destroy said portion of said island for said purposes, to the great and irreparable injury of defendant." As a further and separate defense, it is averred, in substance, that defendant, for more than 20 years last past, has, under claim of right, openly, adversely, exclusively, and continuously occupied and used the tract of land in question in the manner above mentioned, and, by reason thereof, has acquired a legal right so to do. Finally, it is contended that plaintiff ought to be estopped from asserting that defendant or its predecessor in interest has exceeded its rights in the use of the premises, for the reason that valuable and extensive improvements have been made upon the property in controversy, with the acquiescence and approval of John Minto, from whom plaintiff acquired title.

The trial court held against the defendant in its construction of the contract. It found that the doctrine of estoppel was not involved; that the water company had not acquired any additional rights by adverse use, and that it had exceeded its right in the use of the premises under the present system of operation; but refused to grant equitable relief by injunction, for the reason that no "present substantial damage has been established * * * by reason of the trespass committed by defendant upon said premises," and also on account of the injury that might be sustained to the inhabitants of the city of Salem if the defendant company were restrained from procuring water as it now does. From a decree dismissing the suit and awarding plaintiff's costs and disbursements, both parties appeal.

Roy F. Shields, of Portland (Smith & Shields, of Salem, on the brief), for plaintiff.

John H. McNary, of Salem, and Lawrence T. Harris, of Eugene (Harris, Smith & Bryson, of Eugene, and McNary, McNary & Keyes, of Salem, on the brief), for defendant.

BELT, J. (after stating the facts as above).

The trial court properly sustained objection to parol evidence offered to show what the grantors of the easement intended to convey. The language of this instrument is clear and unambiguous. It clearly and definitely defines the rights of the water company in its use of the premises, and so must it be bound, unless, subsequent to the execution thereof additional rights have been acquired or plaintiff has become estopped from...

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23 cases
  • Lloyd Corp., Ltd. v. Whiffen
    • United States
    • Oregon Supreme Court
    • May 9, 1989
    ...Furthermore, an injunction is appropriate here because damages may be uncertain and difficult to prove. See Minto v. Salem Water etc. Co., 120 Or. 202, 220, 250 P. 722 (1926). It is important to note that a continuing trespass analysis does not involve the "comparative injury doctrine;" tha......
  • York v. Stallings
    • United States
    • Oregon Supreme Court
    • June 24, 1959
    ...great advantage to the complainant.' Booth-Kelly Lumber Co. v. City of Eugene, 67 Or. 381, 136 P. 29; Minto v. Salem Water, Light & Power Co., 120 Or. 202, 250 P. 722. See also City of Harrisonville, Mo. v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. Some support for th......
  • Tooker v. Feinstein
    • United States
    • Oregon Court of Appeals
    • February 14, 1995
    ...instrument granting the easement is clear, that language, and only that language, decides the easement's limits. Minto v. Salem Water Co., 120 Or. 202, 210, 250 P. 722 (1926). There is nothing indefinite about the location of the easement burdening plaintiff's lot. Although the instrument c......
  • Tipperman v. Tsiatsos
    • United States
    • Oregon Court of Appeals
    • April 17, 1996
    ...the language of the instrument is clear, that language, and only that language, decides the easement's limits. Minto v. Salem Water Etc. Co., 120 Or. 202, 210, 250 P. 722 (1926). However, when the grant is indefinite, the location of the easement may be shown by the first location and use o......
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