Flinn v. Vaughn

Me. Justice King delivered the opinion of the court. ' This is a suit by D. F. Flinn and N. W. Moon to enjoin William Vaughn and J. A. McDonald from the erection of what is known as “splash dams” in the north fork of the Coquille River, which, it appears, were constructed for the purpose of impounding the waters, and thereby facilitating the floating of logs in the stream. Plaintiffs claim that irreparable injury is caused by the use of these dams, in that the storing of a large quantity of water and suddenly releasing it erodes the banks and carries away large tracts of land, destroys fences, and otherwise entails great damage. The defendants insist that the use of the stream in this manner is essential during a large portion of the year to the proper floating of logs to market, and that the plaintiffs are not substantially injured thereby. On evidence submitted a decree was entered perpetually enjoining defendants from creating artificial freshets by means of such dams, and awarding plaintiffs damages aggregating $350; hence this appeal. 1. The navigability of the stream during a portion of the year is conceded; only the right to place splash dams therein, and use the same in the manner indicated, being questioned. The law governing the use of streams for the purposes complained of may be deemed fully settled [374] by this court in Hallock v. Suitor, 37 Or. 9 (60 Pac. 384) ; Union Power Co. v. Lichty, 42 Or. 563 (71 Pac. 1044), and Kamm v. Normand, 50 Or. 9 (91 Pac. 448: 11 L. R. A. [N. S.] 290: 126 Am. St. Rep. 698). In the case last cited Mr. Justice Bean states the rule thus: “A stream which is not such a highway cannot be made one by the use of dams or other artificial means without first acquiring the rights of riparian proprietors. 1 Farnham, Waters, § 139. Nor can a stream, navigable in its artificial condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No oiie has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure., or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream, with no burden or hindrance imposed by artificial means—[citing numerous authorities]. * * Dams, dikes, embankments, and the like may be constructed in or along boatable streams to facilitate their use, but not to the extent of injuring the riparian proprietors by retarding the flow of the water or sending it down in increased volumes to his injury, or at times when the stream would not otherwise be navigable. And this rule is not changed by the fact that a stream cannot be successfully used for logging purposes without such artificial aids to navigation on the ground of necessity.” To the same effect, see also, Trullinger v. Howe, 53 Or. 219 (97 Pac. 548: 99 Pac. 880: 22 L. R. A. (N. S.) 545). In Hallock v. Suitor, 37 Or. 9 (60 Pac. 384), it was held that no damage was sustained in consequence of the defendants flushing the creek, thereby indicating that dams may be maintained, providing no injury to the riparian proprietors is occasioned thereby. In the case under consideration,' however, we think the evidence [375] clearly discloses substantial injury, and that plaintiffs were damaged by defendants’ artificial use in at least the sums awarded. 2. The point relied upon by defendants in the briefs and arguments is that of estoppel, with reference to which it is maintained that plaintiffs made no objection to the institution of the dams, which were placed in the stream at enormous expense. It appears that Ed. Moon, a son of one of the plaintiffs, had some conversation' with defendants at the time the dams were constructed, stating, in effect, that he was glad they were being placed in the stream; that he thought they (the plaintiffs), would be benefited, and further signifying a willingness to aid by his labor without charge in the erection of the dams. Aside from the fact that Ed. Moon is not a party to the proceeding, and it is not disclosed that he was acting for his father in such manner as to bind him, it appears from cross-examination of the defendants and their witnesses that the dams were not placed in the stream upon the strength of any representations made by the plaintiffs or others, but that, on the other hand, the obstructions would have been placed there, regardless of anything plaintiffs, or those associated with them, may have said in respect thereto. Our attention is called to the rule laid down in Curtis v. La Grande Water Co., 20 Or. 84, 49 (23 Pac. 808: 25 Pac. 378: 10 L. R. A. 484) as sustaining defendants’ position. Whether this case goes to the extent claimed for it we need not inquire, for it was in part overruled by this court in an opinion by Mr. Justice MOORE in Ewing v. Rhea, 37 Or. 583, 587 (62 Pac. 790, 792: 52 L. R. A. 140: 82 Am. St. Rep. 783), where, in discussing these principles, it is observed: “We do not think that upon principle a mere naked license, which is predicated upon an invasion of another’s right, and is, in effect, a trespass upon his property, so encourages a party to act upon the faith of the implied [376] permission as to render it irrevocable, even when money has been expended in improving property under a belief that the uninvited use relied upon will never be interrupted.” And in Lavery v. Arnold, 36 Or. 84, 86 (57 Pac. 906, 907), after noting “that a parol license to do some act upon the servient estate cannot be revoked after the licensee, relying upon the faith thereof, has expended money or performed labor in making valuable and permanent improvements upon real property,” the rule is clearly and concisely enunciated as follows: “But such license must result from some consideration paid by the licensee or some benefit accruing to the licensor, otherwise a person entitled to the use of water might be deprived thereof by seeing a neighbor constructing a ditch, making no objection thereto until the water was diverted, under an honest belief that he intended to use only the surplus. The parol license sanctioned and upheld by this court is something more than a passive acquiescence, and hence defendant can claim no right to the use of the water by this means.” 3. We think it manifest that defendants have not by their proof brought themselves within the rules thus announced. No consideration appears to have been paid for the privileges claimed. No direct benefits are shown to have accrued to plaintiffs by reason of the obstructions nor is it disclosed that defendants built the dams or expended any money on account of anything said or done by either of the plaintiffs. Obviously, therefore, their defense of estoppel is untenable. It is argued, however, that without the dams in the stream and temporary obstructions of the flow defendants could float their logs during only the extreme high water, which would result in logs in large numbers being floated over and left upon plaintiffs’ lands, thereby occasioning to their property greater damage than could possibly accrue under the' manner employed. Assuming this to be true, it would not follow that defendants are entitled to adopt as a [377] substitute therefor the methods complained of. It is for the owner of the land to say whether some system other than the natural flow of the stream may be invoked. The question for determination here, and which is decisive of the controversy, is: Does the method pursued substantially injure the banks of the stream, or otherwise inure to plaintiffs’ damage? To illustrate, it might be that the construction of a railway, with which to transport the logs to market, would be to the advantage of all concerned, including plaintiffs, but it would be no answer in an action for damages for the appropriation of a right of way therefor across their premises for defendants to say less damage would be suffered thereby than would be occasioned by the use of the stream for the floating of logs. 4. Plaintiffs’ counsel insist that the damages awarded are very inadequate, and that they should be materially increased here. No appeal was taken by the plaintiffs; they presumably being satisfied with the decree of the trial court. But in this connection it is argued that since under Section 555, B. & C. Comp., suits in equity are tried de- novo on appeal, plaintiffs may insist upon a more favorable decree than .that awarded them by the trial court, regardless of whether a cross-appeal is taken. If the matter were before the court for the first time, there would be much room for argument in support of respondents’ contention, but, whether rightfully or wrongfully determined, the question has been so firmly set at rest by previous adjudications of this court that we do not feel justified in further inquiring into the merits of the controversy. See McCoy v. Crosfield, 54 Or. 591 (104 Pac. 423) and Bank of Commerce v. Bertrum, 55 Or. 349 (104 Pac. 963: 106 Pac. 444) where the matter is fully reviewed and decisions by this court are collated on the subject. It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.