Trullinger v. Howe

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, J. (after stating the facts as above).
• Citation: Trullinger v. Howe, 58 Or. 73, 113 P. 4 (Or. 1911)
• Decision Date: 14 February 1911
• Parties: TRULLINGER et al. v. HOWE.

113 P. 4

58 Or. 73

TRULLINGER et al. v. HOWE.

Supreme Court of Oregon

February 14, 1911

Appeal from Circuit Court, Yamhill County; William Galloway, Judge.

Contempt proceeding against D.P. Trullinger and another in an action by D.P. Trullinger and another against W.A. Howe, doing business as the Carlton Lumber Company. From an order overruling a demurrer and adjudging that plaintiffs pay a fine of $50, plaintiffs appeal. Reversed and remanded.

This is a contempt proceeding against plaintiffs, based upon the following motion and affidavits, filed December 16, 1907:

"D.P. Trullinger and Carl S. Trullinger, Plaintiffs, v W.A. Howe, Doing Business under the Name of Carlton Lumber Company, Defendant.

"Now comes W.A. Howe, the defendant in the above-entitled action by Williams, Wood & Linthicum, Walter S. Asher, and R.L Connor, his attorneys, and moves the court that D.P Trullinger and Carl S. Trullinger, the plaintiffs, and each of them, be required to obey and execute the decree herein rendered requiring them to so modify the dam maintained by them across the North Yamhill river known as Trullinger's dam, so as to permit the free passage of the logs of the defendant, and to show cause why they should not be punished for contempt of court in failing and refusing to so modify and abate said dam as to permit the passage of logs coming to said dam by the North Yamhill river during the natural stages and conditions of water in said river, and in support of said motion the said W.A. Howe shows and alleges as follows:

"That heretofore in this cause a decree was duly entered, which among other things, decreed as follows: That the plaintiff D.P. Trullinger has a right to maintain and operate his said dam in the complaint described for the purpose therein alleged, so long and so far as it does not operate as an obstruction to the navigation of said river, and does not interfere with its use as a public highway, and that wherein said dam, or any part thereof, operates to interfere with the free use of said river as a public highway, said dam ought to be and it is hereby decreed that it shall be modified and adjusted so as to permit at all stages of natural water of free navigation of said river as a public highway, and for the floatation of logs. Which decree ever since has been and now is unreversed and of full force and effect heretofore, to wit, April 10, 1907, the plaintiffs herein appealed from said decree to the Supreme Court of the state of Oregon, which appeal is now pending and undetermined, but no order, act, or proceeding has been issued or had whereby said decree has been in any wise stayed or suspended. Heretofore, to wit, November 22, 1907, the North Yamhill river was, and for some time prior thereto had been, navigable for logs in commercial quantities and dimensions by the natural stage and condition of the water in said river, and on or about said date the defendant commenced putting the logs into said river for floatation to his mill at Carlton, Or., at various points above said Trullinger's dam, and said logs floated upon the natural stage and condition of water as far as Trullinger's dam, where they were stopped by said dam and could not pass the same; whereas, if said dam had not obstructed said North Yamhill river, the said logs would by natural water without the use of splash dams have continued down the river to the said mills at Carlton. That by reason of the obstruction of said river by said dams the said logs have been unable to pass on down said river, and still rest upon and are hung up on said dam, and the entire run of logs of this defendant is by reason of said dam as aforesaid held and obstructed, and so has been since the 22d day of November, 1907, and there has accumulated back of said dam in said river not less than ______ million feet of logs which now remained detained and obstructed as aforesaid. That defendant has a valuable contract with the Southern Pacific Company for the output of his said mill up to the 1st day of January, 1908, which contract is above the market price to-day for corresponding lumber and is extremely valuable to the defendant. That, in order to enable the defendant to operate his mill continually and especially during the summer season, it is necessary, especially if the defendant is not permitted to use splash dams, that he be allowed to avail himself fully and without obstruction of the navigability of the North Yamhill river during the winter season, and by reason of the failure of the plaintiffs to obey and conform to the decree aforesaid by abating and modifying the said dams so as to permit the passage of logs in natural stages of water in the said North Yamhill river, the defendant has sustained and is sustaining great loss and damage. Defendant has requested the plaintiffs to obey the decree of this court, and to adjust their said dam so as to permit the passage of said logs, which plaintiffs refuse to do.

"Williams, Wood & Linthicum,

"R.L. Connor, and

"Walter S. Asher,

"Attorneys for the Defendant.

"State of Oregon, County of Yamhill--ss.:

"I, W.A. Howe, first being duly sworn according to law, say that I am the defendant in the above-entitled cause, and that I have read the foregoing facts in support of the motion herein, and the same are true as I verily believe.

"[Signed] W.A. Howe.

"Subscribed and sworn to before me, this the 6th day of December, 1907.

"Walter S. Asher [Seal.]

"Notary Public in and for the State of Oregon."

Several other affidavits were filed at the same time in support of...