West v. Taylor

• Decision Date: 04 April 1887
• Citation: 13 P. 665,16 Or. 165
• Parties: WEST v. TAYLOR and another.
• Court: Oregon Supreme Court

13 P. 665

16 Or. 165

WEST v. TAYLOR and another.

Supreme Court of Oregon

April 4, 1887

Appeal from Clatsop county.

J.Q.A Bowlby, R. Stott, and J.B. Waldo, for appellant.

Fulton Bros., for respondent.

STRAHAN, J.

The object of this suit is to restrain the defendants from maintaining or repairing a certain dike or dam erected by them on their own lands in Clatsop county, Oregon, whereby the waters accumulating and flowing out of Cullaby lake are caused to flow back upon the plaintiff's lands, by means of which their use for agriculture or pasturage is entirely destroyed. The facts, as they appear from the evidence, are about as follows: The plaintiff owns a large body of land adjacent to Cullaby lake, in Clatsop county Oregon. This lake is about two miles long, and, upon an average, about one-half mile wide, and is fed by perennial springs, and a mountain stream five or six miles long, which flows into the lake at its southern extremity, and is called "Clapsop Creek." For two miles south of the lake it is a deep, sluggish creek, and is of the depth of from nine to ten feet. Prior to 1877 the main outlet to the lake was Neacoxie creek, into which the waters of said lake flowed at ordinary stages. From the western part of the lake, Neacoxie creek flowed in a north-west course for about four miles; it then curved sharply to the westward, and from thence, in a southerly direction, along the coast, many miles south of the source of the lake, it empties into Okanna creek, which flows into the Pacific ocean. About the year 1877, the sand drifted into Neacoxie creek in such quantities that its channel became choked up, and it entirely ceased to be an outlet for the waters of said lake. This result was produced solely by natural causes. During high water, at all times Neacoxie creek was insufficient as an outlet for the constantly accumulating waters of said lake; but, after it became filled and choked with sand, the waters of said lake have flowed out at the northern portion thereof, a part of which spread out over the lands of the defendant and others lying north of said lake, while the greater portion thereof finally gained an outlet into Skipanon creek, which empties into Young's bay. There is no well-defined water-way from Cullaby lake to Skipanon creek extending over the entire distance; but over the greater portion thereof there extend "swales marshes, depressions, or hollows," into which the water flows during the greater part of the year, with a continuous current northward to the Skipanon. The inclination of the surface from Cullaby lake to Skipanon is not great, but is enough to carry the water, if left unobstructed, from one point to the other. For the purpose of restraining the waters from Cullaby lake from spreading over the defendant's land the dike in question was constructed. It is two feet eight and one-half inches high and its erection has raised the waters above and south of it high enough to overflow from three to four hundred acres of the plaintiff's land, and about one thousand acres in all, which were not previously covered by water. Before the erection of said dike, the defendants and others, for the purpose of reclaiming their lands, had dug two ditches from Skipanon creek, extending up to or near the north end of the lake, so that a large portion of the overflow of the lake was carried off by means of these ditches.

A well-informed witness describes the situation thus: "Interrogatory 4, p. 5. How many natural outlets are there from that lake? Answer. I should say, for quite a number of years back the only natural outlet or inlet at all that I know of has been through the marsh. By the marsh I mean what is marked, Exhibit A, as marsh between Cullaby lake and Skipanon creek. The water escapes over and through the marsh. The ground appears to be porous, and in some places appears to be floating, and allows the water to flow partially under the marsh. Joining the mainland, the water seems to be deeper than in any other part of the marsh; that is, on the west side of the marsh. In former times there seems to have been another partial outlet. Since about the year 1877 this has been the only outlet that I know of. I don't know what was the outlet before '77. Don't think I ever was in the marsh prior to '77. Have seen the marsh several times lately. There is a dike or dam on the south line of the James Taylor claim, or close to the line. Int. 5, p. 6. State what effect, if any, was had upon the land. A. As long as the dam held, it forced the water back upon the lake and adjacent marshes. It overflowed the land of plaintiff partially. It is a damage to plaintiff's land, but how much I cannot say. The overflow of these lands interfered with the use of them.'' "A. to Int. 2, p. 19. At the present time there is what is called the little ditch, between which and the slough which I speak of is high or marsh land of perhaps a rod in width or more. What I mean by the slough is clearer water than the rest of the marsh; the rest of the marsh having brush and grass growing upon it. It is, I should judge, about a rod in width. It is too deep to wade; soft bottom. It has a slight current to the north." "Cross-Question, p. 20. Is not it in many places entirely grown up with brush and crab-apples? A. Not so but I could get through with a boat." "Int. 22, p. 22. What did you ever go along the west side of the marsh, on defendant's land, in a boat, through this slough you speak of, for? A. I had shot a duck in it, and I got Carnahan's boat, and got it. I was through there two years ago." "Int. 13. How far through defendant's land did you go, in what you call a slough, in a boat? A. About half way through."

Another witness, R.W. Morrison, among other things, testified as follows. "Answer to Interogatory 1, p. 31. The marsh running across the east portion of my claim is as follows Through my lands there are two branches of marsh. Between these branches there is a ridge of land. The marshes are branches of the portion of the marsh that is south, and joins Cullaby lake. There is a good deal of water going down these marshes at present, but most of it is going through ditches that have been cut through the marshes. By 'down' I mean north, coming from Cullaby lake, and flowing in a northerly direction. Int. 2. How long ago were these ditches dug? A. The one in the west arm must have been dug some 6 or 8 years ago. The one in the east dug some years later. Int. 3, p. 32. What was the condition of these arms before the ditches were dug? A. In the winter time they were flooded. In the summer time, years ago, they were dry; that is, there was no running water, or standing water except in low places. On my place I did not think there was any water that stood all summer except on the east marsh. There was a small...