Trullinger v. Howe

• Decision Date: 06 October 1908
• Citation: 53 Or. 219,97 P. 548
• Parties: TRULLINGER et al. v. HOWE.
• Court: Oregon Supreme Court

97 P. 548

53 Or. 219

TRULLINGER et al. v. HOWE.

Supreme Court of Oregon

October 6, 1908

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

Action by D.P. Trullinger and another against W.A. Howe, doing business under the name of the Carlton Lumber Company. From a decree for defendant, plaintiffs appeal. Reversed, and decree rendered for plaintiffs.

This is a suit to restrain defendant from interfering with plaintiffs' use of the water of the North Yamhill river for power purposes, by operating splash dams thereon. Plaintiffs are riparian owners, and have a gristmill and light plant at or near the town of North Yamhill, which are operated by water diverted from the stream by means of a dam and race. The mill has been so operated for more than 40 years and the light plant for more than 3 years. Defendant has constructed a sawmill at Carlton, four or five miles below on the stream, and is the owner of a large tract of timber at the headwaters, above plaintiffs' mill. In 1905 and 1906 he constructed two large dams in the mountains, 12 or 14 miles above plaintiffs' mill, one across the main stream and the other across Fairchile creek, a tributary thereof, by which he accumulates large volumes of water which he suddenly releases, at his pleasure, to facilitate the floating of logs down the stream. Plaintiffs complain and allege that, by so retarding the natural flow of the stream defendant interferes with its use by them for power purposes and the sudden release of the water fills their race with dirt and débris, washes down logs on, and injures, their dam, and fills their mill pond, thereby seriously impairing their use of the water for power purposes. Defendant denies the injury complained of, and alleges that the North Yamhill river for some miles above plaintiffs' mill is a navigable stream for floating logs and products of the forest, that plaintiffs' dam is an unlawful obstruction thereof, and that the use of the splash dams, in the manner complained of, is necessary to enable defendant to float logs over such obstruction. Defendant had decree in the court below, and plaintiffs appeal.

S.B. Huston and McCain & Vinton, for appellants.

C.E.S. Wood, R.L. Conner and Walter S. Asher, for respondent.

BEAN C.J. (after stating the facts as above).

The testimony of both parties was directed, in part, to the point whether the North Yamhill river at or above plaintiffs' mill is a floatable stream, and whether plaintiffs' dam is an unlawful obstruction therein. But the determination of these questions is not really necessary to a decision of the issues. If the stream is navigable or floatable, it is so only during the winter months, and the plaintiffs, as riparian proprietors, have a right to maintain a dam across it for their use, provided it does not materially affect or abridge the use of the stream as a highway at such times as in its natural condition it may be so used. Gould on Waters, § 110; Hallock v. Suitor, 37 Or. 9, 60 P. 384; Chenango Bridge Co. v. Paige, 83 N.Y. 178, 38 Am.Rep. 407; Connecticut River Lumber Co. v. Olcutt Falls Co., 65 N.H. 290, 21 A. 1090, 13 L.R.A. 826; A.C. Conn Co. v. Little Suamico Lumber Mfg. Co. and Another, 74 Wis. 652, 43 N.W. 660; Parks v. Morse, 52 Me. 260. And defendant has no right to interrupt or retard the natural flow of the water, to plaintiffs' injury, or to store it, by means of dams and reservoirs, and suddenly discharge the accumulation to their damage. Gould on Waters, § 209; Kamm v. Normand (Or.) 91 P. 448, 11 L.R.A. (N.S.) 290; Slingerland v. International Contracting Co., 169 N.Y. 60, 61 N.E. 995, 56 L.R.A. 494; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am.Rep. 184. Nor is defendant justified in so using the waters of the stream, even if plaintiffs' dam is, to some extent, an obstruction to navigation. It is not per se a nuisance or unlawful structure. It is rightfully in the stream, and, if an obstruction at all, it is because it is too high, or proper means have not been provided for the passage of logs over it. If this is so, defendant should proceed, in a proper manner, to have it abated or rely upon an action for damages, if injured thereby. He cannot accumulate large volumes of water above the dam, and by suddenly releasing it send down immense floods, depositing dirt and débris in plaintiffs' race, and preventing its use for power purposes. The right of the public to use a navigable or floatable stream in its natural condition is not paramount to the right of a riparian owner to construct dams therein and use the waters for power purposes, so long as he does not materially affect or abridge the public right. The rights of each must be exercised with due regard to the existence and preservation of the rights of the other. The right of passage is, to some extent, necessarily the dominant right, because it is the right to move on or by. It, in the nature of things, cannot be exercised unless the other temporarily yields to it, but it is not an exclusive right, and must not be usurping, excessive, or unreasonable. It must be exercised without unnecessarily interfering with the riparian proprietor, and as modified by his right to make a reasonable use of the stream for his own purposes. Pearson v. Rolfe, 76 Me. 380; White River Log, etc., Co. v. Nelson, 45 Mich. 578, 8 N.W. 587, 909; Middleton v. Flat River Booming Co., 27 Mich. 533; Buchanan v. Grand River Log Co., 48 Mich. 364, 12 N.W. 490; Foster v. Spool and Block Co., 79 Me. 508, 11 A. 273. If, therefore, the operation of defendant's splash dams has been such as to materially injure or interfere with plaintiffs' use of the waters for power purposes, they are entitled to relief. Upon this point there is practically no conflict in the testimony. The reservoir above defendant's dam in Fairchile creek has a capacity of about 5,000,000 cubic feet of water, and that in the main stream, a short distance above the mouth of such creek, about 1,250,000. The method of operating these dams is to close the gates and retard the flow of the water until the reservoirs are filled, and then to suddenly open the gates, so that the accumulation of water from both dams will reach the mouth of Fairchile creek at the same time, thereby raising the water at that point from 6 to 8 feet, and at plaintiffs' mill, 10 or 12 miles below, from 16 to 24 inches above its natural stage. The waters so discharged necessarily rush down the stream with great violence, eroding banks, and carrying large quantities of mud and débris, which is deposited in sluggish places and especially in ...