Sweetland v. Grants Pass New Water, Light & Power Co.

• Decision Date: 30 January 1905
• Citation: 79 P. 337,46 Or. 85
• Parties: SWEETLAND v. GRANTS PASS NEW WATER, LIGHT & POWER CO.
• Court: Oregon Supreme Court

79 P. 337

46 Or. 85

SWEETLAND v. GRANTS PASS NEW WATER, LIGHT & POWER CO.

Supreme Court of Oregon

January 30, 1905

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by W.I. Sweetland against the Grants Pass New Water Light &amp Power Company to require the removal of a dam, and for damages. From a judgment for defendant, plaintiff appeals. Affirmed.

W.C. Hale, for appellant.

W.T Muir, for respondent.

WOLVERTON C.J.

Shortly prior to September 24, 1889, the Grants Pass Water, Light &amp Power Company was incorporated and organized, and, in pursuance of its purposes, it very soon acquired from the town of Grants Pass the franchise, right, and privilege of laying within its streets water and gas mains, and of erecting and maintaining therein electric light poles, and affixing thereto the necessary attachments and wires for supplying the town and its inhabitants with water and light for public and domestic use. In furtherance of its purposes on the date mentioned, it obtained from Fred Geyer, who was then the owner of lots 5 and 6 of section 19, township 36 south, of range 5 west of the Willamette meridian, as designated upon the government survey, and abutting upon the south bank of Rogue river, a deed, whereby, in consideration of $50 and other advantages, he granted and confirmed unto the power company and "its successors and assigns forever the full, free right, liberty and privilege to go upon and over such lands *** on the south bank of Rogue river opposite the town of Grants Pass *** and there locate an abutment for a dam and to make the necessary excavations and to construct such abutment for a dam across said Rogue river, and to construct upon such land the necessary cribs and guards to such dam and such abutments and to construct said dam with such abutment on said land, and the right to forever repair, rebuild and maintain said dam, abutment and cribs or guards on such land, and also the full free right, liberty and privilege of ingress and regress over and upon said bank and lands. To construct, repair, rebuild and maintain said dam, abutments and cribs or guards thereon, together with the full, free right, liberty and privilege forever to flow the waters of said Rogue river back upon and over the said land of the party of the first part at any and all times as a result and in consequence of said dam across said river without any damages or claim or demand for damages upon the part of the party of the first part, his heirs, or assigns by reason of said abutment, cribs, guards, or dam or of the flowing of the water over or upon any of the lands of the said party of the first part." This deed was recorded in the record of deeds for Josephine county the day following. At the time of acquiring the grant, the power company was engaged in constructing a power house on the north bank of the river, and was, as stated by Boyington, the owner of the land upon which it was being built. It was also engaged in the construction of a dam running practically at right angles to the thread of the stream to the opposite bank, and it was for the purpose of securing the right of attaching the dam to the south bank, and so maintaining it, that the deed was obtained. It should be noted, also, as is shown by the testimony, that the dam was being built in connection with the power house as a means of utilizing the water in Rogue river as a source of power, in furtherance of the purposes for which the company was incorporated. Soon after procuring the deed, the dam was attached by an abutment at the south bank and completed. It remained in place, however, but a short time; and another was built slightly below, but with the bank abutments practically the same, which structure, and the water of Rogue river controlled by it, were utilized in connection with the power house. A year or so later the water carried away the south bank of the river, making a new channel around the abutment on that side. About 1893 or 1894 a new dam was constructed by extending a wing dam from the north approach of the old structure upstream some 700 feet, more or less, and connecting it with the south bank of the stream by cribwork at a point on the north margin of the plaintiff's premises, described in his complaint as containing 4.64 acres, which is, perhaps, 1,300 feet above the original conjunction of said dam with such south bank. When this latter dam was built, and made to abut upon the present premises of plaintiff, Geyer was still the sole owner thereof, and especially of the 4.64-acre tract. He was cognizant of its construction, and it does not appear that he ever made any objection to abutting it upon his land at a different place from that where first attached. He was upon the stand for plaintiff in the present case, and, if it had been so constructed without his consent or against his protest, undoubtedly the fact would have been developed. It does appear, however, that after the water washed around the south abutment, as first constructed, he consulted his lawyers, with a view to a recovery of damages, and was advised that he was without remedy, whereupon he testifies that he "gave up all, *** and I never said anything more about it." On August 26, 1897, Geyer contracted to convey the 4.64-acre tract to H.A. Corliss, and on June 5, 1899, conveyed to plaintiff and one Gray; they having succeeded to the interest of Corliss. Later, on June 13, 1901, Gray conveyed his interest to plaintiff; and, on the 14th of November following, plaintiff acquired the 1 3/4-acre tract adjoining on the west, and abounding on the river.

This indicates the chain of title to plaintiff's premises and, in the meanwhile, acquaints us with the persons interested along the south bank of the river. In about 1900 it became necessary to repair this latter dam, and it was in a manner reconstructed, concerning which plaintiff testifies that he never gave any consent to such reconstruction, and further that he objected thereto and to its further maintenance; but his more explicit declarations are that he objected to the manner of raising the water, and more so to the ill-advised way in which the company was protecting the bank. It is further shown that in the winter and spring of 1901-02 the river washed around the south abutment of the latter dam, and carried away some of the improvements of plaintiff, and much of the surface of the soil, with the trees and shrubbery, covering about one acre in extent, resulting in much damage to the property. In the summer, however, after the institution of the present proceedings, the defendant constructed a pier still further inland upon plaintiff's premises, and extended the dam to a connection with it. Concerning this added structure the plaintiff was interrogated and answered as follows: "Q. Did you make any objection at that time, to any of the persons in charge, against going upon your land with further construction? A. No; I didn't at that time. Q. You may state to the court why you didn't, Mr. Sweetland. A. Well, the reason why I didn't, I thought it would be no advantage to me or them either to leave it the way it was, and I knew my objection would be no good, because I had objected before--a verbal objection. I didn't go any further. I didn't use any force or anything of that kind. They never asked for any privilege, either, to build out there. They just went ahead and built it, the same as they always did. *** Q. They proceeded with the work there without asking your consent? A. Yes, sir; there never was any talk in regard to that that I had at all, that I remember of. *** Q. What did you say to Mr. Brown about repairing that dam? A. Well, I met him there one day. I don't know how it happened. Q. Where? A. At the dam there on this south side. And I told him, if he was going ahead and put that in there in the shape it was, he was going to wash me out, and I tried to get him to protect that bank there. He told me there was no use protecting that bank; those willows stood there, and firs and alders, and there was no danger of washing that out; all he was looking for was to get water; let the bank take care of itself; and he told me it was none of my business, anyhow, or something to that effect. Q. What else did you say to him? A. I don't know. We talked a good many times. I don't know what I said. That was one time, I remember, that I protested, and that was the answer I got. I talked with Clarke since. Q. Your conversation there was that you wanted him to protect that bank? A. Yes; if he put in the dam, I could not stop him. They were working there with a crew of men. I didn't try to stop it. That was all I could do. Q. You didn't talk about stopping the dam construction, but about protecting the bank? A. About raising the dam. I didn't go down and tell him he could not put it in. I wasn't going to try to stop him, because I knew I couldn't. Q. You merely spoke to Brown about protecting your land? A. If he was going to raise the dam, I protested against him raising the dam without protecting me. I did that. Q. Did you suggest how it should be protected? A. I don't remember. Q. Didn't you tell him some rock should be put in, or something? A. I made some suggestions. I don't remember what I said at that time. Q. Were the suggestions you made at that time complied with? A. No, sir. Q. Didn't they do what you suggested should be done? A. No, sir. They done what they suggested should be done. Q. Do you remember what you suggested? A. I might have suggested, and part of it might have been fulfilled, but all of it never was at any one time. Q. When they were building that present pier you spoke of last year, did you object to that? A. No, sir. Q. You were perfectly willing for them to spend that money? A. Yes, sir. Q. You allowed them to...