Linn County v. Calapooia Lumber Co.

Mr. Justice Bean delivered the opinion of the court. 1. A suit for an injunction to compel the removal of an obstruction to a highway may be maintained by a [101] county or municipality only upon showing danger of great and irreparable injury. 37 Cyc. 253. When the injury complained of is not, per se, a nuisance, but may or may not become so, according to the circumstances, and when it is uncertain, indefinite, or contingent, or productive of only possible injury, equity will not interfere until the matter has been tried at law. The relief will not be allowed in the absence of clear and conclusive proof that the injury is permanent and irreparable, nor where the acts complained of are only temporary. 1 High, Injunctions, § 742, and note; 4 Pomeroy, Equity Juris. (3 ed.) § 1349. A court of equity has power to restrain and abate a public nuisance, when the right has been established by law, or is conceded, and the questions of fact are not in dispute. Van Buskirk v. Bond, 52 Or. 234 (96 Pac. 1103). The obstruction complained of was temporary, and the public travel was impeded for only a short time. On one of these occasions, it appears that the rise of the water was caused by a jam of sawlogs congesting in the river above defendant’s dam. As to whether or not this inconvenience will occur in the future depends entirely upon the amount of rainfall and other natural conditions varying with the change of the seasons, the operation of the gates, and the change in the drainage outlets. Taking all these things into consideration, the danger to the county road is problematical, uncertain, and conjectural. It is not shown how much the number of logs in the river would have to be lessened, in order to relieve the congestion of the logs; nor is it clearly shown how much the dam would have to be lowered to aviod the backwater. Apparently the plaintiff is asking to abate a dam about 14 feet in height so as to take care of an overflow of water of about one foot in .depth. From the evidence this would appear to be about the amount of the overflow, in view of the fact that the depth of [102] the water flowing over the dam during a flood is four feet, and the grade of the road is three feet above the top of the dam. It does not therefore appear necessary to abate the entire dam and destroy the usefulness of this manufacturing establishment. A practical spillway, or the keeping open of additional gates in the dam when freshets occur, together with the raising of the grade across the gulch near the small bridge will apparently relieve the situation without destroying the dam or rendering the mills useless. 2. It is not the policy of the law or the province of a court of equity to unnecessarily destroy property, and there is manifestly great fitness in pausing much before we unnecessarily interrupt persons in the use and enjoyment of their property. Esson v. Wattier, 25 Or. 7 (34 Pac. 756). Only the future can determine whether or not the inconvenience complained of will recur. It appears that the county court, whose duty it w,as to look after matters pertaining to county roads, practically agreed with defendant in regard to the manner of relieving the situation in caring for the surplus water by means of a canal or spillway and by raising the grade of the road across the low depression near the small bridge. 3. The trial court heard the testimony of the witnesses, and in substance found that the road in question had been flooded for only a brief period of time and that the public travel thereon had not been materially interfered with. We think that the findings were warranted by the evidence. The decree of the lower court is therefore affirmed. Affirmed.