Miser v. O'Shea

• Decision Date: 22 October 1900
• Citation: 62 P. 491,37 Or. 231
• Parties: MISER v. O'SHEA et al.
• Court: Oregon Supreme Court

62 P. 491

37 Or. 231

MISER v. O'SHEA et al.

Supreme Court of Oregon

October 22, 1900

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

Bill by S.W. Miser against P.H. O'Shea and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

This is a suit to enjoin the defendants from trespassing on certain real property. The transcript shows that the plaintiff is the owner of a placer mining claim in the Green Mountain mining district, Douglas county, Or., through which Starveout creek flows, and that the defendant O'Shea owns the claim above plaintiff's on the creek, the water of which he conveys through a flume to a pipe, and by means of a mining instrument called a "giant," connected therewith uses the water to disintegrate the natural bank, thereby securing the gold imbedded therein, the resulting débris being carried in sluices by the returning water to, and deposited in or along the banks of, the creek. The defendants B.D. & H. Dyer, having leased plaintiff's mine, built a dam in the creek about 300 feet below the O'Shea mine constructed a flume, and diverted the water so returned which they used in operating the mine so leased. Other lessees of the plaintiff constructed a reservoir below his dam, whereby the water flowing through the dam was stored and used in the dry seasons in operating mines along the banks of the stream, and by opening a gate in this reservoir the creek was flushed, carrying off the sediment deposited therein. The reservoir, however, having become filled with detritus O'Shea tried to open the gate to liberate the deposit, but, being unable to do so, he and others, not parties to this suit, tore it out. B.D. & H. Dyer surrendered to plaintiff the possession of his mine, and with his consent cut the dam, but neglected to put a gate therein, and, having taken the defendant Robert Powell into partnership, they leased O'Shea's mine, in operating which there was deposited along the banks of the creek, on plaintiff's premises, débris to the depth of from 3 to 5 feet, from 15 to 20 feet wide, and 264 feet in length, and to prevent a continuation thereof this suit was instituted. O'Shea, answering separately, denies the material allegations of the complaint, and avers that since October 1, 1893, he has been in the continuous possession, and since July 26, 1894, the owner, of his said mining claim, and that on _____ 1, 1893, he appropriated 300 inches of the water of said creek, which he used in a lawful manner in operating his mine. For a second defense he alleges that plaintiff's dam obstructed the flow of water in the creek, causing it to back up over his mine, thereby preventing the tailings from being carried down the stream, to his damage in the sum of $1,000; that his claim was located, and the water from said creek so appropriated, prior to plaintiff's location and appropriation; and that his use of said water, and the return thereof by flumes to the creek above plaintiff's claim, are the acts of which he complains. For a third defense, he alleges that on October 1, 1893, the plaintiff entered into a contract with him, whereby it was agreed that he was to have the privilege of depositing débris on plaintiff's claim at the place and in the manner complained of. The other defendants deny the material allegations of the complaint, and aver that plaintiff, on May 5, 1894, leased his mine to B.D. & H. Dyer, until it should be sold or worked out, in consideration of which they agreed to dig a ditch, construct flumes, and put in sufficient pipe to mine said claim, paying plaintiff 25 per cent. of the gold taken therefrom; and it was stipulated that, if the mine should be sold, plaintiff would pay said defendants two-thirds of the purchase price thereof; that, said defendants having performed their part of the agreement, the plaintiff, on November 6, 1897, in consideration of the cancellation of his lease of the mine and the surrender of the possession thereof, agreed that said defendants should have the right to deposit débris from O'Shea's mine in and below plaintiff's dam. The court sustained a demurrer to O'Shea's second defense, and struck out of the other defendants' answer the averment respecting the leasing of plaintiff's mine, the consideration therefor, and the agreement to pay a part of the purchase price in case of a sale of the leased premises. Replies having put in issue the remaining allegations of new matter in the answer, a trial was had, resulting in a decree for plaintiff, and the defendants appeal.

O.P. Coshow, for appellants.

Dexter Rice, for respondent.

MOORE J. (after stating the facts).

It is contended that the court erred in sustaining the demurrer to O'Shea's second defense. A counterclaim is one arising out of a cause of action existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had, and, as far as applicable herein, must be connected with the subject of the suit. Hill's Ann.Laws Or. §§ 73, 393. If it be assumed that the injury resulting to said defendant in consequence of the plaintiff's construction of his dam afforded a cause of action upon which a judgment might be rendered, the question to be considered is whether such alleged counterclaim is connected with the subject of the suit. This suit being for a tort, the injury complained of is the wrong, which consists of the deposit of débris upon plaintiff's mine, and the right, or subject of the suit, is the property which is affected by the alleged trespass. Bliss, Code Pl. (3d Ed.) § 126. Thus, in Lovensohn v. Ward, 45 Cal. 8, it was held that the subject-matter of the litigation, in an action of replevin, was the property alleged to have been unlawfully taken by the defendant, who could not, in his answer, allege that the plaintiff had taken from him other property than that mentioned in the...