State ex rel. Cox v. Wolfe

• Decision Date: 01 June 1976
• Parties: STATE of Oregon ex rel. William S. COX, Director, Division of State Lands, Appellant, v. Wayne S. WOLFE, Respondent.
• Court: Oregon Court of Appeals

Page 1281

549 P.2d 1281

25 Or.App. 551

STATE of Oregon ex rel. William S. COX, Director, Division of State Lands, Appellant, v. Wayne S. WOLFE, Respondent.

Court of Appeals of Oregon.

Argued and Submitted April 26, 1976.

Decided June 1, 1976.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Carl M. Dutli, Enterprise, argued the cause for respondent. With him on the brief was Lorin M. Ricker, Enterprise.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FOLEY, Judge.

The Division of State Lands sought a mandatory injunction to require defendant to restore Whisky Creek in Wallowa County to its natural channel. The Division appeals from an order dismissing its second amended complaint after a demurrer thereto had been sustained by the trial court.

Plaintiff's second amended complaint alleges in substance that the defendant had applied for a permit to divert Whisky Creek to Willow Creek; that in making the diversion he proposed to remove the material from the proposed channel and use it and other material to fill that portion of Whisky Creek left dry as a result of the diversion. The complaint states that the application was denied and defendant, without a permit, diverted Whisky Creek into Willow Creek. The complaint then alleges that under ORS 541.605 ¹ to 541.695 a permit is required to make the diversion; that defendant has refused to restore Whisky Creek to its natural channel. It alleges irreparable damage and requests mandatory relief.

A complaint must contain a plain and concise statement of the facts constituting the cause of suit. ORS 16.210, 16.010. The material allegations of a pleading are admitted on demurrer as is every reasonable and proper inference deducible therefrom. Wills v. Nehalem Coal Co., 52 Or. 70, 96 P. 528 (1908); Oregon Home Builders v. Eisman, 88 Or. 611, 172 P. 114 (1918). See McDowell v. SAIF, 13 Or.App. 389, 398, 510 P.2d 587 (1973).

Defendant contends that it is essential to plaintiff's complaint that the amount of fill or amount of material removed must be alleged and without such allegations the complaint fails to state a cause of suit. Since the complaint did not allege the removal of any particular amount of material but only that defendant diverted Whisky Creek into Willow Creek, he urges that the demurrer was properly sustained. We agree.

The words 'fill' and 'removal' as used in the chapter under which the suit was brought are words of art. ORS 541.605 provides:

'* * *

'(5) 'Fill' means the total of deposits by artificial means equal to or exceeding 50 cubic yards or more of material at one location in any waters of this state.

'(6) 'Removal' means the taking of more than 50 cubic yards or the equivalent weight in...