Moore Mill & Lumber Co. v. Foster

• Decision Date: 15 April 1959
• Citation: 216 Or. 204,336 P.2d 39
• Parties: MOORE MILL & LUMBER COMPANY, a corporation, Respondent, v. Wayne FOSTER, Appellant.
• Court: Oregon Supreme Court

Page 39

336 P.2d 39

216 Or. 204

MOORE MILL & LUMBER COMPANY, a corporation, Respondent, v. Wayne FOSTER, Appellant.

Supreme Court of Oregon.

Argued June 11, 1958.

Decided Feb. 25, 1959.

Rehearing Denied April 15, 1959.

See 337 P.2d 810.

Thomas H. Tongue, III, Portland, argued the cause for appellant. With him on the brief were William E. Walsh and Robert F. Harrington, Coos Bay.

Norman J. Wiener, Portland, argued the cause for respondent. With him on the brief were Frederic H. Starkweather, Jr., Gold Beach, and King, Miller, Anderson, Nash & Yerke, Portland.

Before PERRY ^*, C. J., and ROSSMAN, LUSK, WARNER, McALLISTER ^** and SLOAN, JJ.

ROSSMAN, Justice.

These are two appeals by the defendant, consolidated through stipulation of the parties, from two judgments rendered by the circuit court in favor of the plaintiff in condemnation actions. The actions were instituted pursuant to ORS 376.505 through 376.540, and the only difference between them is the identity of the real property they affect. Each of the two challenged judgments appropriated to the plaintiff an easement, 80 feet wide, over land owned by the defendant, for the right of way for a logging road which the plaintiff wishes to construct. The two roads, if built, will start at the same point and each will be an extension, or fork, of a longer road known as Willow Creek road which is owned by the plaintiff and which now terminates at the point where the two extensions will begin. Each fork will be about a mile long. If the extensions are constructed, Willow Creek road will enter at two places a body of timberland 5,500 acres in extent recently acquired by the plaintiff. One of the judgments required the plaintiff to pay for the easement in that action $2,700 and the other required the payment of $2,300. In one of the cases the area subject to the easement is approximately 18.7 acres and in the other 20.1 acres. The appropriated land lies in western Curry county and is principally suitable for forestation and grazing. The plaintiff is a private corporation which was formed under the laws of this state. Its mills require 70 million feet of logs annually, a part of which is purchased in the market. After the issue of necessity had been resolved in favor of the plaintiff by the trial judge, the question as to the amounts payable to the defendant was determined by the verdicts of the juries. The defendant-appellant presents thirteen assignments of error.

The first assignment of error reads:

'The Court erred in finding and holding that there exists a 'necessity' for the appropriation by plaintiff of the proposed rights of way for a logging truck road over the defendant's lands.'

The fourth assignment of error, which we will consider concurrently with the first, reads as follows:

'The Court erred in denying the following motion by defendant:

"We * * * request that a jury trial be allowed in these cases on all issues, including the issue of necessity.' to which the Court replied:

"Let that motion be overruled."

A determination of the assignments of error just quoted requires us to consider facts which we will now set forth briefly. The plaintiff has a mill in Bandon and an affiliated mill in Empire. It owns timberlands in the general vicinity of the two mills. In August, 1956, it acquired an additional tract of timberland which, when combined with contiguous tracts already owned by it, formed a block of 5,500 acres containing 100 million feet or more of standing timber. The plaintiff's desire to secure from the tract as much as 50 million feet annually and bring the logs to its Bandon mill resulted, on December 26, 1956, in the institution of the two actions under consideration. Each action sought, as we have already indicated, an easement across parts of land owned by the defendant so that the plaintiff can construct two extensions, or branches, of the Willow Creek road and thereby reach the timberland we have mentioned. The tract is about 28 1/2 miles southeast of Bandon if a route is taken consisting of (a) either of the two proposed extensions, (b) the Willow Creek road, and (c) U. S. Highway 101 from the point where the Willow Creek road connects with it. U. S. Highway 101 runs along the coast north and south through Bandon. The tract comprising 5,500 acres lies in a mountainous area in Curry county, approximately seven miles or more east of U. S. Highway 101. As one leaves Highway 101 in the general vicinity of the 5,500-acre tract and heads east foothills are encountered. A witness, in describing the 5,500-acre tract, stated that it 'lies in more or less of a cup shape,' that is, its perimeter is marked by a series of ridges. In or near the northwest corner of the tract the ridge consists in part of an elevation known as Edson Butte, 2,786 feet high. The Willow Creek road reaches a summit of 2,200 feet in that vicinity. Toward the southwest corner of the tract the ridge is an elevation known as Elephant Rock, 1,512 feet high. The Plum Tree road in that vicinity, which we will later describe, reaches a height of 1,200 feet. Logs secured from the 5,500-acre tract, in making their way to Bandon, will have to use in part U. S. Highway 101 which, as we have said, is seven miles or more west of the 5,500-acre tract. Accordingly, the log trucks will have to cross the ridge in the northwest or southwest corners of the 5,500-acre tract.

In its northwest corner, the 5,500-acre tract abuts upon land owned by the defendant located in Sections 22, 23, 26 and 27 [T.31S., R.14W., W.M.] which lie between the 5,500-acre tract and the eastern end of Willow Creek road. The latter, eight and a half miles long, was constructed by the plaintiff for logging purposes. It is a private road and the plaintiff is its owner. The road begins on U. S. Highway 101 about a half mile north of the community known as Denmark, and, after pursuing a southeasterly direction for four and a half miles, takes a course substantially east for the remaining four miles of its length. Its eastern end is in the west line of Section 22, which we have stated is owned by the defendant. Thus it ends a mile or so west of the nearest part of the 5,500-acre tract. The plaintiff seeks in these two condemnation proceedings easements which will enable it to extend the Willow Creek road in two forks across parts of Sections 22, 23, 26 and 27. If the two access roads are built, the plaintiff will be able to bring the logs which the 5,500 acres will produce down the Willow Creek road into Highway 101 and on to its Bandon mill.

Since the defendant challenges the Willow Creek road as suitable to the plaintiff's purpose, we will take notice of the evidence which discloses the road's fitness.

The Willow Creek road is a mainline road and was described by the plaintiff's superintendent, Walter Miller, as an 'all-weather road.' He added, 'We have logged the year round' upon it. The same witness declared that the road has 'adequate turnouts and passing areas.' Apparently it was well constructed. The plaintiff plans to haul upon it to Bandon from the 5,500-acre tract 100 loads of logs per day. For that purpose an all-weather road, according to the plaintiff's evidence, is essential. The Willow Creek road has an adverse grade of about six to seven per cent at one place, but a witness declared, 'Six to seven per cent adverse isn't very much to a truck now days. * * * Nothing to be weighed heavily.' Another witness, William Ruhmann, forest manager for Coos Bay Timber Company, testified that the Willow Creek road has 'nothing in excess of eight per cent' adverse grade. He added that six per cent 'is considered a reasonable grade.' More than that percentage adds materially to the cost of operation.

The Willow Creek road, for large part, lies upon high ground and is, therefore, comparatively free of the drainage problem which the witnesses declared is a difficult one in the rainy region with which this case is concerned. The road passes through a place about a half mile in length in which slides have occurred. Since the road is privately owned, it is not subject to statutes and regulations which govern speed and the weight of the load. Being a private road, the log truck drivers who use it do not encounter the hazards which confront log truck drivers upon public roads. One of the witnesses, who stated that the chief advantage of the Willow Creek road is the fact that it is a private thoroughfare, explained, 'All lumber companies look for a private route to keep out of the way of the public.'

The two extensions to the Willow Creek road which the plaintiff seeks to construct were identified as the upper road and the lower road. The upper road, as staked upon the ground, will have a maximum grade of six and a half per cent for a distance of a quarter of a mile. The grade of the contemplated lower road was not mentioned by the witnesses.

We will now review the evidence which describes the road that the defendant says the plaintiff should use. It is the county [public] highway, known as the Sixes River road, about four miles south of the Willow Creek road and extending easterly from Highway 101. It is an all-weather road. Roughly, it parallels the Willow Creek road, although for a substantial part of its length it has more curves than the Willow Creek road. Some of its curves are sharp, and it is very narrow in places. The eastern terminus of the Sixes River road is in Powers, east of the 5,500-acre tract. The Sixes River road does not enter the 5,500-acre tract but lies south of it one to three miles, dependent upon the course of the road at a particular point and the irregular shape of the 5,500-acre tract. In order to haul logs from the 5,500-acre tract to Bandon by way of the Sixes River road, it will be necessary for the plaintiff to have a road from the tract to the Sixes River road. If an access road of that kind is acquired and the logs are taken down the Sixes River road to Highway 101 and then...