Thomas v. Booth-Kelly Co.

Decision Date17 November 1908
Citation52 Or. 534,97 P. 1078
PartiesTHOMAS v. BOOTH-KELLY CO.
CourtOregon Supreme Court

Appeal from Circuit Court, Lane County; J.W. Hamilton, Judge.

Suit by Jonathan J. Thomas against the Booth-Kelly Company. From a decree for defendant, plaintiff appealed. Appeal dismissed.

This is a suit by Jonathan J. Thomas against the BoothBFKelly Company, a corporation, to enjoin the maintenance of a dam alleged to have been built in such a manner as to interfere with the natural flow of water in certain streams, and to restrain the driving and storing of sawlogs therein. The complaint sets forth the preliminary facts necessary to give the court jurisdiction, describes the plaintiff's premises and the channels extending through them, and alleges that the defendant built a dam in one of the streams, causing backwater to overflow a part of plaintiff's cultivated land, rendering it unproductive, making his fords impassable and forming stagnant pools, which menace his health; that the defendant stored sawlogs in such water courses, which injured their banks and prevented the plaintiff from crossing the streams with teams; and that the damages thus inflicted are continuous, and the injury imposed is irreparable, for the redress of which actions at law will not afford adequate remedies. The answer denies the material averments of the complaint, and alleges that the defendant and its predecessors in interest have for more than 40 years continuously operated mills at Coburg, driving and holding sawlogs in the streams mentioned, which water courses are navigable for that purpose, and that the right to continue such use and to set back the flow of water by a dam has been acquired by prescription, stating the manner of securing and retaining such possession. The reply put in issue the allegations of new matter in the answer, and, the cause having been referred, the court made findings of fact from the testimony taken, and dismissed the suit. From this decree, the plaintiff appeals.

J.K Weatherford, for appellant.

A.C Woodcock and A.H. Tanner, for respondent.

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

It appears from the uncontradicted affidavit of the defendant's attorneys that, after this cause was determined in the lower court, the plaintiff executed to their client a deed, conveying to it 29.35 acres of land through and along which two of the specified streams flow, which tract is a part of the...

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12 cases
  • Stires v. Sherwood
    • United States
    • Oregon Supreme Court
    • January 19, 1915
    ... ... Moores ... v. Moores, 36 Or. 261, 59 P. 327; Livesley v ... Johnston, 48 Or. 40, 84 P. 1044; Thomas v ... Booth-Kelly Co., 52 Or. 534, 97 P. [75 Or. 117] 1078, ... 132 Am. St. Rep. 713; State ex rel. v. Webster, 58 ... Or. 376, ... ...
  • State v. Portland General Electric Co.
    • United States
    • Oregon Supreme Court
    • November 17, 1908
  • Lewis et Ux. v. Shook et Ux.
    • United States
    • Oregon Supreme Court
    • November 25, 1947
    ...298 (92 Pac. 811, 94 Pac. 182); Oregon Elec. Co. v. Terwilliger Land Co., 51 Or. 107 (93 Pac. 334, 930); Thomas v. Booth-Kelly Co., 52 Or. 534 (97 Pac. 1078, 132 Am. St. Rep. 713); Elwert v. Marley, 53 Or. 591 (99 Pac. 887, 101 Pac. 671, 133 Am. St. Rep. 850); Eilers Piano House v. Pick, 58......
  • Barnes v. State Indus. Acc. Commission of Oregon
    • United States
    • Oregon Supreme Court
    • September 9, 1924
    ... ... 50 Or. 298, 311, 92 P. 811, 94 P. 182; Ore. Elec. Ry. v ... Terwilliger L. Co., 51 Or. 107, 114, 93 P. 334, 930; ... Thomas v. Booth-Kelly Co., 52 Or. 534, 536, 97 P ... 1078, 132 Am. St. Rep. 713; Elwert v. Marley, 53 Or ... 591, 594, 99 P. 887, 101 P. 671, ... ...
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