Molalla Electric Co. v. Wheeler

• Decision Date: 07 March 1916
• Citation: 154 P. 686,79 Or. 478
• Parties: MOLALLA ELECTRIC CO. v. WHEELER ET UX.
• Court: Oregon Supreme Court

154 P. 686

79 Or. 478

MOLALLA ELECTRIC CO. v. WHEELER ET UX.

Supreme Court of Oregon

March 7, 1916

Department 1.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Suit for injunction bye the Molalla Electric Company against Irvine Wheeler and wife. Decree for defendants, and plaintiff appeals. Affirmed.

B. G. Skulason, of Portland (Clark, Skulason & Clark, of Portland, on the brief), for appellant. Philip L. Hammond, of Oregon City (Hammond & Hammond, of Oregon City, on the brief), for respondents.

MOORE C.J.

This is an appeal by the plaintiff, the Molalla Electric Company, a corporation, from a decree requiring it to pay the defendants Irvine Wheeler and Jennie Wheeler his wife, $200 as the value of 1.39 acres of their land which was taken for a canal, and $300 as damages to the remainder of their premises. It appears from a transcript of the testimony that the plaintiff's predecessors in interest, the Molalla Power Company and the Canby Canal Company, in the year 1909 began the construction of a ditch to divert water from the Molalla river and conduct it to a power house where it was to be used in generating electricity for illumination. In prosecuting the work it became necessary to cross a 12-acre rectangular tract of land owned by the defendants. In order to secure a right of way therefor, an agent of the plaintiff's predecessors agreed to pay the defendants $100, to furnish them the free use of eight 16-candle power incandescent lamps six hours daily, to allow them to install in the ditch a 5 horse power wheel with which to divert 24 miners' inches of water to be used for irrigation from May to August each year, both months included, to grant them the right to excavate an incline to the canal to permit stock to obtain water, to authorize them to take from the canal sufficient water to operate a hydraulic ram to supply water for domestic purposes, and to erect and maintain for them three bridges across the canal on their land, which rights and privileges the defendants were to use and enjoy for a term of 99 years. Relying upon these promises, and without receiving any part of the consideration, the defendants, by a parol license, permitted the canal to be dug across their premises from the southeast corner to the northwest corner, a distance of 1,030 feet, the earth taken from the ditch being left on the south bank, and the excavation and waste occupying a space of 40 feet in width at the narrowest part. One bridge was built across the canal near the east border of the defendants' land for their use, and this is the only consideration ever given for the easement.

The defendants commenced an action in ejectment to try the title to, and to recover the possession of, the strip of land making the Molalla Power Company, the Canby Canal Company and the Molalla Electric Company, defendants. The last-named company, having succeeded to all the rights of the other companies in and to the canal, filed an answer in that action, and thereupon, as plaintiff instituted this suit in the nature of a cross-bill in equity, to enjoin further prosecution of the law action, and to have determined the value of the land which was taken for the ditch, and the measure of the damages which resulted to the defendants' premises by reason of the construction of the canal. The cause being at issue was tried, a decree rendered, and a review thereof instituted as hereinbefore stated.

It is contended by plaintiff's counsel that in allowing the defendants more than $100, as the value of the land taken, an error was committed. The plaintiff's witnesses estimated the worth of the land appropriated at $75 an acre, or $104.25 for the 1.39 acres taken. In the opinion of the defendants' witnesses, however, the value of such land was appraised at $350 to $500 an acre. The trial judge viewed the premises, and, from such inspection and a consideration of the testimony given on this branch of the case, awarded to the defendants $200 as the value of the land of which the plaintiff had taken possession. In the trial of a suit in equity the judge of the lower court, under the practice which obtains in Oregon, determines the facts in issue, but such conclusion is not final; for on appeal from a decree in such a cause, the case is tried anew upon the transcript and the evidence accompanying it. L. O. L. § 556.

When in an equity suit the trial judge personally examines the locus in quo, in order properly to apply the testimony received to the issues involved, his findings of fact and the decree predicated thereon are entitled to careful consideration. In the case at bar, an examination of the testimony given by the plaintiff's witnesses does not, in our opinion, overcome the findings as to such value, corroborated as it was by the judge's view of the premises.

It is maintained that the testimony received is insufficient to authorize an award of any damages for detriment to the remainder of the premises, and that in giving the defendants $300, as indemnity for such...