O'Neil v. Twohy Bros.

BURNETT, J. 1. In whatever form the questions in dispute may have been considered, they all turn upon the construction to be given the deed already mentioned. For the purposes of this opinion that instrument may be set down as an executed contract. It is pleaded by the plaintiff first according to the legal effect which he puts upon it and likewise is set out in haec verba as an exhibit, attached to and made part of his final pleading. In such a case the instrument itself prevails, to the exclusion of the statement of its legal effect in the pleading of which it is a part: Haworth v. Jackson, 91 Or. 272 (178 Pac. 926). 2. We here set down the oft-quoted -Section 713, L. O. L.: “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing,” —except in certain cases not here involved. [488] The alleged oral agreement is pleaded as part of the consideration for the deed mentioned. It is therefore a contractual consideration, and not one of a monetary nature, and from Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135), continuing through such cases as Oregon Mill Co. v. Kirkpatrick, 66 Or. 21 (133 Pac. 69); Muir v. Morris, 80 Or. 378 (154 Pac. 117, 157 Pac. 785), and Elliott Contracting Co. v. Portland, 88 Or. 150 (171 Pac. 760), the rule has been stated thus: ‘ ‘ The authorities are practically unanimous in holding that, where the statement in the written instrument as to the consideration is of a contractual nature, as where the consideration consists of a specific or direct promise by one of the parties to perform certain acts, it cannot be changed or- modified by parol or extrinsic evidence. A party has a right to make the consideration of his agreement of the essence of his contract, and, when this is done, the consideration for the contract, with reference to its conclusiveness, must stand upon the same footing as its other provisions, and accordingly cannot be affected by the introduction of parol or extrinsic evidence. ’ ’ See, also, Interior Warehouse Co. v. Dunn, 80 Or. 528, 535 (157 Pac. 806). The reply is a plain attempt to import into the agreement embodied in the deed ádditional particulars resting wholly in parol, and which the statute quoted expressly forbids, saying strictly that “no evidence of the terms of the agreement other than the contents of the writing” shall be admitted. 3-5. It was competent, as both parties admit in their arguments, for the plaintiff to retain his water right and alienate the means by which he enjoyed it. He did this by his deed, and conveyed his interest in the Table Land Ditch to the district without reservation. [Hence, at the time of the grievances cbmplained of, to wit, the tearing up and destruction of the con [489] duit, he had no right or interest therein upon the invasion of which he might predicate damage. As the district owned the ditch, it rightfully could, as it did, contract with the defendant to tear it up and build another on its site, all without hindrance or objection by the plaintiff. The complaint avers that— “During all of said time the plaintiff had the right to the use of said ditch for the purpose of conveying water therein from said creek to his said lands. ’ ’ • But his deed contradicts this averment. The plaintiff’s own pleading in reply showed that he had no cause of action. Called upon to prove his traversed allegation of the right to use the ditch, the proof he offered contradicted his statement. He argues that the reservation of the individual water rights as specified in the deed amounts to a reservation also of the ditch as the .only means by which those rights can be enjoyed. Both parties, however, conceded it to be the law, and it is well supported by the precedents, that the ditch or other conduit carrying water may be conveyed separate from the water rights which it serves. The fact that the ditch constituted the only present means of enjoying the water rights does not destroy its alienability. In fact, the plaintiff. by the very terms of his deed separated the ditch from the water right, and he cannot be heard to contradict his conveyance by parol. However the question was treated, whether by demurrer to the reply, motion for judgment on the pleadings .or motion for nonsuit, the ruling should have been in favor of the defendant. The Circuit Court was in error in denying the objections thus interposed by the defendant. The judgment is therefore reversed. Reversed. Rehearing Denied.