Union Light & Power Co. v. Lichty

• Decision Date: 06 April 1903
• Citation: Union Light & Power Co. v. Lichty, 71 P. 1044, 42 Or. 563 (Or. 1903)
• Parties: UNION LIGHT & POWER CO. v. LICHTY.
• Court: Oregon Supreme Court

71 P. 1044

42 Or. 563

UNION LIGHT & POWER CO. v. LICHTY.

Supreme Court of Oregon

April 6, 1903

Appeal from Circuit Court, Marion County; R. P. Boise, Judge.

Suit by the Union Light & Power Company against John Lichty.Decree dismissing the suit, and plaintiff appeals.Affirmed.

This is a suit to restrain the defendant from interfering with the natural flow of the waters of Silver creek, a stream rising in the Cascade Mountains, flowing westerly, and emptying into Pudding river; and though it is narrow, and the flow of its waters impeded by many bowlders, yet in the rainy season, it affords a sufficient volume of water to float saw logs to market, which cannot usually be done in the dry season.The plaintiff, a private corporation, is a riparian proprietor on the creek, the waters of which it dams and uses in propelling machinery to generate electricity which it furnishes to customers for lighting.In May, 1902, the defendant commenced the erection of a sawmill on said stream at Silverton, and having placed a large quantity of saw logs in the creek built a dam across it about six miles above plaintiff's light station, whereby the water could be flooded back about three-fourths of a mile, raising a head of 26 feet, and by suddenly opening a gate in the dam the water could be drawn down to 10 feet, thereby carrying the saw logs towards the mill.This dam having been completed July 23, 1902, the gate was shut and remained closed two days; thus preventing the flow of water to plaintiff's station, in consequence of which its dynamos could not be operated, and its customers were deprived of electric light.The complaint, having alleged the facts, in substance, as hereinbefore stated further avers that defendant threatened to continue to raise his dam until it was 75 feet high, and so to operate it; that a sudden discharge of the water would destroy plaintiff's property and menace the lives of its employés; that it had no speedy or adequate remedy at law, and, to prevent a multiplicity of actions, instituted this suit.The prayer for relief is that the defendant be perpetually enjoined from erecting his dam to such a height as may appear dangerous to plaintiff's property, and that he be restrained from periodically impeding the flow of water in said stream so as to deprive the plaintiff of the use and enjoyment thereof.The answer denies the material allegations of the complaint and avers that defendant owns 1,400 acres of valuable timber land, through which Silver creek flows, and that, by means of dams provided with sluiceways water, can be raised to a sufficient height at all times, except during one or two months in the summer, so that when suddenly liberated it flushes the creek carrying the logs to market, and that such use of the water is necessary and a reasonable exercise of the defendant's right as a riparian proprietor.The reply having denied the material allegations of the answer, a trial was had, resulting in a decree dismissing the suit, and plaintiff appeals.

E.E. Coovert and L.K. Adams, for appellant.

George G. Bingham, for respondent.

MOORE C.J.(after stating the facts).

It is contended by plaintiff's counsel that Silver creek is navigable for logs only in the winter, and that defendant has no right in the dry season to retard the natural flow of water to facilitate the transportation of his logs, when by so doing injury results to their client, and hence the court erred in dismissing the suit.It is maintained by defendant's counsel, however, that plaintiff has a plain, adequate, and complete remedy at law for the recovery of damages for the injury sustained, and hence the extraordinary power of a court of equity cannot be invoked for his relief, for which reason no error was committed as alleged.

Though in this state a judge may preside over a court administering both law and equity, these forums are separate,...