Musgrave v. Lucas

• Decision Date: 12 December 1951
• Parties: MUSGRAVE et al. v. LUCAS et al.
• Court: Oregon Supreme Court

Page 780

238 P.2d 780

193 Or. 401

MUSGRAVE et al. v. LUCAS et al.

Supreme Court of Oregon.

Argued and Submitted Nov. 14, 1951.

Decided Dec. 12, 1951.

W. C. Winslow and Roy Harland, both of Salen, for appellants.

Wallace P. Carson, of Salem (Ralph E. Moody and Allan G. Carson, both of Salem, on the brief), for respondents.

Before BRAND, C. J., and LUSK, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is an action for damages for alleged fraud, brought by Walter Musgrave and Evelyn L. Musgrave, as plaintiffs, against Edward J. Lucas and Caroline Lucas, as defendants. A demurrer and a motion to strike certain portions of the complaint were filed by defendants. Plaintiffs filed an amended complaint. Defendants moved to strike certain parts thereof. The motion was sustained in part, and the matters so stricken were obliterated. Defendants then demurred on the ground that the amended complaint did not state facts sufficient to constitute a cause of action against them. The demurrer was sustained. Plaintiffs refused to plead further, and, on motion of defendants, judgment on the pleadings was entered in favor of defendants. Plaintiffs appeal.

We shall set forth the amended complaint as it stood before the parts successfully moved against were obliterated, noting however, by parentheses, the portions stricken. Omitting formal parts, the amended complaint alleges:

'I

'That on or about the 2nd day of April, 1948, plaintiffs purchased from defendants a sand and gravel operation, including bunkers for loading the same and the deposit of sand and gravel, located on real property more particularly described as follows: [Here follows a description by metes and bounds of 5.31 acres of land.] for the full purchase price of $5,000.00.

'II

'That said tract of land is situated adjacent to the Willamette River, the east line thereof extending into the river at high water. That the former bank of the Willamette River close to said east line has been excavated or washed away. That the center portion of said tract has been removed fro [sic] gravel, sand and soil sales to a depth of approximately 15 feet. That during high water the said river fills said excavated portion of said premises and washes against the west boundary thereof. That a short distance to the west and north from said tract is an old slough running north. That said river is threatening to form a new channel across said tract and thence into said slough, and the further removal of soil, sand or gravel from said premises would alter and modify the course, location and condition of the channel of said river, ant that such work has never been and will not be recommended by the Chief of Engineers, or authorized by the Secretary of War. (Italics ours.)

'III

'(That defendants herein, in their operation of said sand and gravel business on said premises, had never received or obtained a permit or authorization from the Secretary of War to excavate thereon nor to remove soil, sand, or gravel therefrom.)

'IV

'That on November 22, 1946, the War Department of the United States of America ordered the defendants herein to discontinue the removal of sand and gravel from said premises, by mailing to the defendants a letter, a copy of which is in words and figures as follows:

'War Department

Office of the District Engineer

Portland District

628 Pittock Block

Portland, Oregon.

'Address Reply to

The District Engineer

(Not to individuals)

'NPPVL

'Refer to file

No. PO 616.4 (Will. R.)--4

November 22, 1946

'Mr. E. J. Lucas,

555 N. Liberty,

Salem, Oregon.

'Dear Sir:

'This office has received a complaint against certain sand and gravel removal operations being conducted in the immediate vicinity of the property of Mr. James Imlah, who resides on R.F.D. No. 1.

'This matter has been under investigation for the last several weeks, and it is found that the above-mentioned operations are being conducted by yourself and your partner. It is also found that the gravel removal operations are creating very serious conditions in that locality. It is noted that the top soil is being removed from an area to a depth of approximately 8 feet for a distance of 400 feet, paralleling and adjacent to the river bank. It is certain that should the bank be opened by virtue of the continued sand and gravel operations in that locality, it would not only in all probability seriously change the channel of the river but it would also endanger some 20,000 acres of bottom land below the point where the operations are being conducted.

'Your operations at that point are definitely in violation of Federal law, in that you have no valid permit issued by this department therefor. In this connection, your attention is invited to Section 10 of the River and Harbor Act approved March 3, 1899, which provides in part 'that it shall not be lawful to excavate or fill or in any manner to alter or modify the course. location, or condition of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.' (33 U.S.C.A. § 403)

'Therefore, you are hereby directed to discontinue your sand and gravel removal operations in that locality at once. In the event you fail to company with this directive, it will most certainly be necessary to refer the matter to the United States Attorney for the protection of the interests of the Federal Government.

'Very truly yours,

(Sgd.) O. E. Walsh,

Colonel, Corps of Engineers,

District engineer

'V

'That at the time of said sale as alleged above, defendants herein, for the purpose of injuring and defrauding plaintiffs, wrongfully, unlawfully and fraudulently represented to the plaintiffs that they knew of no reason why plaintiffs should not continue the operation of said sand and gravel business, that said property was a suitable property for a sand and gravel business; (and that said defendants fraudulently concealed from and failed to disclose to plaintiffs that they had been stopped in their operations upon said premises by the War Department of the United States of America, as disclosed by the latter set forth above, or that they had received any such letter). That said representations were false and fraudulent, and known to the defendants to be false and fraudulent, in this, that said defendants knew of the conditions set forth above and knew that on account thereof further operations would change the course, location or condition of the channel of said river. That said defendants received said letter from said War Department and withheld the information contained therein from plaintiffs in order to induce plaintiffs to purchase said property.

'VI

'That plaintiffs herein, relying upon the representations of defendants, believing the same to be true, (and having no information to the effect that said operations had been stopped by the War Department), or that said premises could not be used for the further removal of soil, sand and gravel, purchased said premises as aforesaid.

'VII

'(That on account of the matters and things herein set forth and alleged, plaintiffs have been and are unable to use said premises for the purpose for which the same were purchased, to-wit; for a sand and gravel business, or to remove any sand, gravel or soil therefrom.)

'VIII

'That at the time of said sale by defendants to plaintiffs there was [sic] located upon said premises approximately 265,000 cubic yards of topsoil, sand and gravel, of the reasonable value of 15 cents per cubic yard.

'IX

'That on account of the false and fraudulent representations aforesaid, plaintiffs have been and are damaged in the sum of $39,750.00.'

The principal question for decision is whether this complaint states a cause of action against defendants. Where, as here, the complaint is challenged by a demurrer, it is to be construed strongly against the pleader. Aune v. Oregon Trunk Railway, 151 Or. 622, 626, 51 P.2d 663; Brosius v. Hazelwood, 127 Or. 635, 637, 271 P. 992.

However, a demurrer admits as true all facts well pleaded and all the intendments and inferences therefrom that can properly and reasonably be drawn. Mattoon v. Cole, 172 Or. 664, 669, 143 P.2d 679; Lothstein v. Fitzpatrick, 171 Or. 648, 662, 138 P.2d 919; Wills v. Nehalem Coal Co., 52 Or. 70, 76, 96 P. 528.

33 U.S.C.A. § 403 (River & Harbor Act), in part provides: '* * * and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity * * * of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.'

33 U.S.C.A. § 406, provides: 'Every person * * * that shall violate any of the provisions of sections 401, 403, and 404 of this title or any rule or regulation made by the Secretary of War in pursuance of the provisions of said section 404, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished * * *.'

33 U.S.C.A. § 413, charges the Department of Justice with the duty of conducting all legal proceedings necessary to the enforcement of the provisions of § 403, as well as other sections of the River & Harbor Act; and for the better enforcement of the law and to facilitate the detection and bringing to punishment of such offenders, the officers and agents of the United States in charge of river and harbor improvements, and the assistant engineers and inspectors employed under them by the authority of the Secretary of War, as well as other officials, are vested with power and authority to swear out process, and to arrest and take into custody, with or without process, any person or persons who may commit any of the prohibited acts, although arrests without process are prohibited except where the offense is committed in the presence of the arresting officer.

33 U.S.C.A. § 540, June 20, 1938, c. 535, § 1, 52...