Whitney v. Willamette Bridge Ry. Co.

• Decision Date: 14 November 1892
• Citation: 23 Or. 188,31 P. 472
• Parties: WHITNEY v. WILLAMETTE BRIDGE RY. CO.
• Court: Oregon Supreme Court

31 P. 472

23 Or. 188

WHITNEY v. WILLAMETTE BRIDGE RY. CO.

Supreme Court of Oregon

November 14, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by E.A. Whitney against the Willamette Bridge Railway Company for damages caused by the washing out of a fill. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.

V.K Strode, for appellant.

R Mallory, for respondent.

LORD C.J.

This was an action brought by the plaintiff against the defendant to recover damages on account of the alleged washing out and destruction of a fill being made in a gulch by the plaintiff in the improvement of Abernethy avenue in the city of Portland. The trial resulted in a verdict and judgment for the defendant, from which this appeal is taken.

The only errors complained of relate to instructions given by the court, and instructions asked and refused. Substantially however, the instructions given cover the instructions asked and refused, and, if those given do not misstate the law, as applied to the facts, there was no error which should cause a reversal of the judgment. The facts upon which the instructions were based are contained in the bill of exceptions. It shows that the gulch referred to in plaintiff's complaint was not a water course; that in the improvement of Williams avenue a fill had been made in and across said gulch where Williams avenue crossed the same, and that no water, at any time after said fill was made, passed below the same in said gulch, and that said fill was made some time prior to the time that the fill being made on Abernethy avenue was washed out; that the plaintiff at the time mentioned was engaged in the improvement of Abernethy avenue, and had partially made a fill in certain lots lying in said gulch, and where Abernethy avenue crossed said gulch, immediately below said fill in Williams avenue, and that there was a large basin thus formed between the fill in Williams avenue and the fill being made by plaintiff in Abernethy avenue; that Williams avenue, at the time complained of, was not graded down to the grade established by this city, and that, after making said fill in Williams avenue, the defendant, in the construction of its street-railway line, laid its track down to the grade of said Williams avenue, and in that way formed a ditch or channel in or near the center and along Williams avenue for a long distance north of said fill in said gulch. There was also evidence tending to show that the defendant dug a ditch some 20 inches wide and 8 inches deep along the ends of the ties of said railway track in said avenue to said fill; that said defendant caused a ditch to be made from its track to the street at a point near said fill, and leading into said basin below said fill, and that quantities of surface water ran along said track in said street by means of said ditch last mentioned into said basin below said fill, into Williams avenue, and that by reason thereof the fill being made by the plaintiff in Abernethy avenue was washed out, and the plaintiff damaged. The defendant introduced evidence tending to show that the gulch in question was the channel through which the surface water was accustomed to flow, and that it served as a drain for a large tract of country on both sides of it; that the grade of Williams avenue, as established by the city, was such as to carry the water coming from the north across the gulch, but that at the time in question the fill on Williams avenue had settled so much as to form a pool on Williams avenue, and that the accumulation of waters in said fill endangered the whole embankment or fill on said avenue. The defendant also introduced evidence tending to show that no more water was turned into said gulch by any acts of the defendant than was wont to accumulate and flow there before the defendant constructed its road and track.

The instructions excepted to were to this effect, as stated by the trial court: "Now, the landowner may, in leveling or grading his land,...