Oliver v. Klamath Lake Nav. Co.

• Decision Date: 08 June 1909
• Citation: 54 Or. 95,102 P. 786
• Parties: OLIVER et al. v. KLAMATH LAKE NAVIGATION CO. et al.
• Court: Oregon Supreme Court

102 P. 786

54 Or. 95

OLIVER et al. v. KLAMATH LAKE NAVIGATION CO. et al.

Supreme Court of Oregon

June 8, 1909

Appeal from Circuit Court, Klamath County; Henry L. Benson, Judge.

Suit by C.T. Oliver and another against the Klamath Lake Navigation Company and another. From a decree dismissing the suit plaintiffs appeal. Reversed, and decree rendered for plaintiffs as stated.

This is a suit to enjoin the construction of a dock or wharf between plaintiff's property and Link river, the construction of which, it is asserted, will materially interfere with the access to and from such river to plaintiff Oliver's property, to his injury and damage. Mitchell, Lewis & Staver Company's interest herein is that of a mortgagee only for which reason Oliver will be treated herein as the sole plaintiff and referred to as such. Woodbury has no interest in the suit, and the cause, by consent, was at the trial dismissed as to him, leaving the Klamath Lake Navigation Company the sole defendant. Link river has its source in upper Klamath Lake, and flows in a southerly direction into lower Klamath Lake. For a distance of about one mile from its source, it is known as Link river, and for the next two miles or more as Ewauna Lake, for which distance it will average about three-fourths of a mile in width, after which, and until it reaches lower Klamath Lake, it is designated as Klamath river. The town of Klamath Falls is situated upon and adjacent to the east bank of Link river, and on the north banks of Ewauna Lake, at the juncture of the lake and river which river and lake are conceded to be navigable. It appears that in the early 70's George Nurse was owner of all the uplands and lowlands along Link river and Ewauna Lake in the vicinity of, and including, what is now the town of Klamath Falls, which town was platted by him in the usual manner into lots, blocks, streets, and alleys, and that defendant through mesne conveyances, became the owner of the S. 1/2 of lot 1, and all of lots 2 and 3, in block 27; thence east to, and including, 11 feet in width by 60 feet in length, off the southwesterly portion of block 28, all situated north of Klamath street, and bordering upon, and extending into, the water on the east side of the channel of Link river, at the junction of the mouth of the river with what is called "Ewauna Lake." According to the averments of the complaint and findings of the trial court, which findings are amply sustained by the evidence, plaintiff Oliver, through mesne conveyances, became the owner of a tract of land south of Klamath street, described as follows: "Commencing at the point of intersection of the easterly line of Payne alley, extending southerly, with the southerly line of Klamath street, in said city of Klamath Falls, Klamath county, Oregon; thence westerly, along the southerly line of said Klamath street, 220 feet; thence southeasterly to a point in said extended easterly line of Payne alley, 200 feet distant from said south line of said Klamath street; thence northwesterly to the place of commencement," making a triangular tract of land immediately south of, and adjoining, Klamath street, and situated upon the northwesterly part of Lake Ewauna at its junction with Link river. For many years there has been a building upon this property, known as the "Oliver barn," which was used for keeping live stock until within about two years before the institution of this suit, since which time Oliver has resided there, and used the principal part of the building for warehouse purposes. He had partly constructed a wharf on the west side thereof between the building and the river, to be used for shipping purposes, when the defendant company, beginning upon the west end of the line of its property, where defendant's property joins the north line of Klamath street, adjacent to, and between, Oliver's wharf and the river, commenced the construction of a wharf or dock 143 feet in width, which extended at right angles therefrom into the water a distance of 165 feet on the west side, and on the east side thereof for a distance of 160 feet, thereby extending across and beyond Klamath street, a distance of about 100 feet, along the east side of Link river, and on and into the west side of Ewauna Lake at its juncture with the river, and to that extent constitutes an obstruction to plaintiff's egress to and ingress from Link river. The testimony adduced discloses that the lake immediately south of plaintiff's property freezes during the larger part of each winter, and that, if the obstruction complained of is permitted, free access to and from plaintiff's property to the river will be materially impeded. The trial court entered a decree dismissing the suit on the grounds that plaintiff was not injured by the obstruction, and accordingly in no position to complain, from which plaintiff appeals.

J.C. Rutenic, for appellants.

Richard S. Smith, for respondents.

KING J. (after stating the facts as above).

But two points of law appear to be involved in this controversy namely: Has the defendant a right as a matter of law to place a wharf in the river or lake, as the case may be; and, if not, can plaintiff maintain a suit to enjoin such...