Mathews v. Chambers Power Co.

Opinion by Mr. Chief Justice Moore. The facts are that, pursuant to the act of Congress approved September 27, 1850, Hilyard Shaw secured a donation land claim of 320 acres in section 32, township 17 south, of range 3 west, in Lane County, Oregon. Extending from a place near the southeast corner of this land to the northwest corner thereof was a slough through which some of the waters of the Willamette Eiver flowed during the freshets in that stream. This depression through that land was deepened in places where necessary so that water, at all stages in the river, flowed in such artificial channel to the northwest corner of the claim, where it was employed in generating power which was used in operating a sawmill and a gristmill. Shaw, on March 1, 1856, and thereafter, executed to the defendant’s predecessors in interest deeds conveying 23 acres of his land claim described generally as beginning at the northwest corner thereof; thence east along the northern' boundary 11 chains; thence south 21 chains; thence west 11 chains to the western boundary; and thence north along such boundary 21 chains to the place of beginning. After describing this strip of land, most of these deeds so executed by Shaw contain clauses which read:. “Together with the water-power upon said premises with the right of way over Shaw’s land claim to bring all the water that may be required to run the mills thereon and all other mills or machinery that may at any time or times’be placed upon the above described premises of whatever kind or nature; also the right [253] to dig the present raceway as deep and wide as may he necessary and to hank the dirt and stone on either side; also to include sufficient dirt and stone lying adjacent to the dams for the purpose of keeping them in repair.” The greater part of these 23 acres of land and of the water rights appurtenant thereto are now owned by the defendant, which leases water-power generated on the premises to be used in operating machinery in factories and mills erected thereon. The plaintiff is the equitable owner by subsequent conveyances of a tract of the donation land claim, a part of his southerly boundary extending to and along the middle of a slough forming a portion of the millrace, which waterway at this place is much wider than in other parts. From such slough a swale leads northerly, and water when high flows therein to the Willamette River. In order properly to direct the current in the mill-race, a dam about 200 feet in length has been built by the defendant across the swale. A cement spillway about 16 feet wide has also been put in the dam, which means of escape permits the surplus water at flood stages and when the mills are shut down to flow to the river. That stream, since it was first known by white persons, has changed its current southwesterly about a mile, infringing upon the Shaw claim. The swale referred to which is a part of the plaintiff’s land is covered with brush and timber, the growth and presence of which tend to prevent the river from making further inroads upon his premises. Contending that Shaw’s grant to its predecessors in interest of such water-power and right of way entitled the defendant to take from the swale any and all obstructions so that logs, trees, roots and limbs flowing thereon and over the spillway might not lodge and [254] thereby back tip the water causing damage, its managing agent caused such brush and timber growing in the swale to be cut and removed without the plaintiff’s consent, whereupon this suit was instituted and terminated as hereinbefore mentioned.' 1. Another appeal from a decree rendered in a suit instituted against this defendant to enjoin it from widening the mill-race through premises below the plaintiff’s land is also before us. It was stipulated by the parties hereto that the evidence received in that suit should, as far as applicable, be considered herein, whatever conclusion may be reached in that case is deemed unimportant in this suit; for from a careful examination of all the testimony adverted to it is believed that Shaw’s prior grant of the water-power and of the mill-race to the defendant’s predecessors in interest was not then intended by the parties to such deeds to include any right to the use of the swale leading from such race across the plaintiff’s premises to the Willamette Eiver. This being so, the cutting and removal of the brush and timber was a willful trespass upon his land authorizing a court of equity to enjoin the invasion of his right, since the severing of such shrubs and trees may permit the river further to encroach upon the plaintiff’s premises to the destruction of his estate therein: Smith v. Gardner, 12 Or. 221 (6 Pac. 771, 53 Am. Rep. 342); Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Mendenhall v. Harrisburg Water Co., 27 Or. 38 (39 Pac. 399); Union Power Co. v. Lichty, 42 Or. 563 (71 Pac. 1044); Moore v. Holliday, 43 Or. 243 (72 Pac. 801); Roots v. Boring Junction Lum. Co., 50 Or. 298 (92 Pac. 811, 94 Pac. 182); Chapman v. Dean, 58 Or. 475 (115 Pac. 154). 2. It is maintained by defendant’s counsel that, the trespass complained of having been committed, the court erred in making the injunction perpetual. It is [255] argued that no occasion to repeat the injury alleged can arise until the brush and trees grow in the swale, which reproduction will require about 20 years. The testimony shows that a few trees remain in the swale, which timber should he protected because the roots imbedded in the soil tend to prevent the river from washing away the banks of the plaintiff’s land. If the defendant had cut and removed from the swale all the trees and brush, and no others could be grown therein, it is possible the rule adopted in Ewing v. Rourke, 14 Or. 514 (13 Pac. 483), might apply. In that case the refusal to enjoin a trespass upon real property was put upon the ground that the wrong complained of had spent its force, and the injured party should resort to an action at law to recover the damages sustained. The defendant’s agents and servants may again he tempted to cut and remove the remaining brush and timber as occasion for their destruction may seem to demand, and in order to prevent a repetition of the trespass the injunction was properly made perpetual. 3. The plaintiff did not take a cross-appeal from that part of the decree which sanctioned the building and maintenance of the spillway on his land, and for that reason it will he taken for granted that he is satisfied with such final determination: Thornton v. Krimbel, 28 Or. 271 (42 Pac. 995); Goldsmith v. Elwert, 31 Or. 539 (50 Pac. 867); Board of Regents v. Hutchinson, 46 Or. 57 (78 Pac. 1028); McCoy v. Crossfield, 54 Or. 591 (104 Pac. 423); Bank of Commerce v. Bertrum, 55 Or. 349 (104 Pac. 963, 106 Pac. 444). It follows that the decree should he affirmed, and it is so ordered. Affirmed. Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.