Rehfuss v. Weeks
| Decision Date | 01 July 1919 |
| Parties | REHFUSS v. WEEKS. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.
Action by Margaret Rehfuss against George W. Weeks. Judgment for defendant, and plaintiff appeals. Affirmed.
Plaintiff brought this action to recover damages in the sum of $475 of defendant for distributing water on plaintiff's land by means of a drainage ditch and tiling. The cause was tried before the court and a jury resulting in a verdict for defendant. From the consequent judgment, plaintiff appeals.
After describing the premises of plaintiff and those of defendant plaintiff asserted in his initiatory pleading, in substance That from time immemorial there has been a natural basin about 800 feet in length and 250 to 300 feet in width on the property of defendant. During the rainy seasons of the year such basin fills with water; that prior to January 4, 1913 the defendant constructed a ditch varying from a few inches to 9 feet 6 inches in depth, and has ever since maintained a drainage tile therein, across a portion of his land and the property adjoining him on the north, the ditch extending to and across a county road for the purpose of draining such basin; and that the waters which accumulate in said basin pass through this tile, and are emptied on the surface of the ground at the "drainage outlet" near the west line of plaintiff's property, causing an excess of water upon plaintiff's land, which lies between the drainage outlet and Claggett creek, the only outlet for the water which flows through the drainage tile over plaintiff's land, thereby damaging plaintiff's land and orchard.
Defendant by his answer denies the alleged trespass, and asserts that the physical configuration of said basin and surrounding country is such that the basin drains its water in a natural course through a natural depression over the land intervening between plaintiff and defendant, crossing the public thoroughfare twice and then across the land of plaintiff until such drainage empties into Claggett creek; that, in addition to the natural depression in the earth's surface extending from the basin to the creek, a ditch from 1 to 6 feet deep was constructed in ancient times for the purpose of more expeditiously draining such basin, and a large portion of country through its accustomed outlet; that in 1911, in order to hasten the drainage of the basin, defendant lowered the depth of the ditch on an average of about 2 feet across a portion of his land and the adjoining premises of one Kurtz which would not increase the accumulation of water in the basin, nor alter the accustomed manner in which the basin drained its waters, nor increase the amount of water which passed over plaintiff's land by reason of the drainage from said basin or surrounding country; that for a period of more than 20 years the predecessors in interest and estate of plaintiff have acquiesced in the course the drainage of said basin has taken, and the artificial ditch dug to facilitate the drainage thereof; that plaintiff's lands are considerably lower than the bed of the basin, and in the state of nature was and is now by an artificial ditch and tile drain over said accustomed route, subject to the drain of the land lying above plaintiff's premises and said natural basin; and a portion of plaintiff's land is marshy and wet during a considerable part of the year on account of percolating waters draining from higher lands immediately to the south.
Defendant also pleaded that plaintiff, in disregard to the proprietary rights of the defendant, obstructed the natural drain of the water flowing from the basin on the lands of defendant so that the same was held back upon defendant's land to his damage in the sum of $250. At the opening of the trial, plaintiff submitted to the court a motion "to require the defendant to elect as to which defense and by way of counterclaim he will rely upon, to wit, a right by nature as pleaded in * * * defendant's further and separate answer, or a right by prescription," as pleaded therein. The denial of such motion is assigned as error.
F. H. Reeves, of Salem, for appellant.
McNary & McNary, E. M. Page, and Grant Corby, all of Salem, for respondent.
BEAN, J. (after stating the facts as above).
A defendant can be required to elect on which of several defenses he will rely only where the facts stated as such defenses are so inconsistent that, if the truth of one defense be admitted, it will necessarily disprove the other. Snodgrass v. Andross, 19 Or. 236, 23 P. 969; Farmers' National Bank v. Hunter, 35 Or. 188, 57 P. 424; Fleishman v. Meyer, 46 Or. 267, 80 P. 209; Susznik v. Alger Logging Co., 76 Or. 189, 147 P. 922, Ann. Cas. 1917C, 700.
This rule of law is well settled in this state, and it only remains to apply it. It will be noticed that the defendant pleaded in effect that from time immemorial there existed a natural outlet to the basin referred to, and that in ancient times a ditch was constructed along the natural depression which served as a drain for a large portion of country lying on either side thereof; that the predecessors in interest of plaintiff have acquiesced in the mannner of so draining the surrounding land for more than 20 years.
It might be true that there was such a natural outlet of the basin in question. It might also be true that the natural depression or outlet was changed and lowered by the construction of the ditch as alleged; therefore it does not follow that, if one state of facts pleaded by defendant is true, the other is false. We see no inconsistency in the two statements. The ruling of the trial court denying the motion to elect was correct.
Testimony was introduced upon the respective sides tending, in a measure at least, to support the contention of the respective parties. At the close of the evidence, plaintiff requested the court to instruct the jury as follows:
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Levene v. City of Salem
...Ry. Co., supra, 23 Or. 188, 193, 31 P. 472; Harbison v. City of Hillsboro, supra, 103 Or. 257, 272, 273, 204 P. 613; Rehfuss v. Weeks, 93 Or. 25, 32, 182 P. 137. Municipalities are governed in this connection by the same rules as natural persons. Harbison v. City of Hillsboro, The periodic ......
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Gibson v. Morris, LV11070743
...flow.We also note that the parties rely on cases involving surface water in support of the above proposition. See Rehfuss v. Weeks, 93 Or. 25, 32, 182 P. 137 (1919) (“The defendant as a landowner had the right to turn or expel upon the land of an adjacent owner, surface water that would nat......
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Bazzaz v. Howe
...plaintiffs' house downhill and across the street. Although it appears that plaintiffs' argument lacks support, see Rehfuss v. Weeks, 93 Or. 25, 26, 32, 182 P. 137 (1919) (adopting and applying the natural-flow rule where the plaintiff's and the defendant's land were not directly adjoining),......
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Wellman v. Kelley
...108 Or. at page 353, 216 P. at page 1018: '* * * The question was not definitely settled in this state until the case of Rehfuss v. Weeks, 93 Or. 25, 182 P. 137, followed by Harbison v. Hillsboro, 103 Or. 257, 204 P. 613, in both of which the opinions were written by Mr. Justice Bean. The p......