Stephens v. City of Eugene

BURNETT, J.

1-3. It clearly appears that the plaintiff is a riparian owner of land abutting upon the slough in question, on both banks thereof. As such, he has the right to have the water flow through his premises as it was naturally accustomed to flow. Without compensation being first assessed and tendered, no one has any right to increase materially the constant flow of the water to the damage of the lower riparian owner. Such action constitutes a continual trespass and properly may be enjoined at the suit of the injured party. It is this principle which is the ground work of cases like Hallock v. Suitor, 37 Or. 9 ( 60 Pac. 384 ), and Trullinger v. Howe, 53 Or. 219 ( 97 Pac. 548 , 99 Pac. 800 , 22 L. R. A. (N. S.) 545), here the court enjoined the use of splash dams which at times let loose upon the stream large and unusual quantities of water which injured lower bank proprietors. That a continual trespass may be enjoined in equity has been decided several times by this court, notably in Chapman v. Dean, 58 Or. 479 ( 115 Pac. 156 ), Micelli v. Andrus, 61 Or. 78 ( 120 Pac. 737 ), and Stotts v. Dichdel, 70 Or. 86 ( 139 Pac. 932 ). In the construction and operation of electric and waterworks for profit the city occupies the same situation as a private corporation organized to buy or sell and get gain, and in the same manner as an individual it is lia *172 ble both at law and in equity for its trespasses upon and violation of individual rights.

The defendant contends that it is liable only for consequential damages based upon its negligent and careless operation of its works and in effect, at least, not for the original invasion of the plaintiff’s premises. It cites in support of this doctrine, Fleming v. Lockwood, 36 Mont. 384 ( 92 Pac. 962 , 122 Am. St. Rep. 375 , 13 Ann. Cas. 263, 14 L. R. A. (N. S.) 628), Billings Realty Co. v. Big Ditch Co., 43 Mont. 251 ( 115 Pac. 828 ), Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14 ( 81 Pac. 785 , 1 L. R. A. (N. S.) 596), Lisonbee v. Monroe Irrigation Co., 18 Utah, 343 ( 54 Pac. 1009 , 72 Am. St. Rep. 784 ), and Boulder v. Fowler, 11 Colo. 396 ( 18 Pac. 337 ). All of these cases proceed upon the theory that the defendant had lawfully obtained the right to construct and operate the artificial waterway it was using and consequently was liable only for negligence in its management. In Northwestern Transportation Co. v. Chicago, 98 U. S. 635 ( 25 L. Ed. 336 ), it was held that the city was not liable for necessary consequential damages to adjacent property caused by any improvement of its streets, unless the work was negligently done and the damage resulted not from the mere making of the improvement but from the manner in which the work was performed. In this case, however, the defendant does not allege any right lawfully acquired to send down through plaintiff’s premises an extra amount of water over what naturally flows there. It simply,avows having .done so and states that it did not cause the water to overflow the banks of the stream. This, however, is not by the mark, for, as already stated, the plaintiff as a riparian owner is entitled to have the water run there as it was naturally accustomed to. While he *173 must endure the discomfort which ordinary floods entail, he is not obliged to tolerate an artificial flood continually maintained by someone acting without' right.

■ The defendant also urges that injunction should be withheld because it would deprive the citizens of Eugene of water for domestic purposes, and fire protection and of electricity for illumination and power purposes, and complains that the plaintiff is seeking to enjoin the operation of the municipal power plant. This is not exact in statement, for it is not alleged in the answer that the use of the slough as a wasteway is essential to the operation of the plant, and no facts are stated from which one could deduce that conclusion. _ The plaintiff seeks simply to enjoin the trespass by which he is denied access to his premises. The case of Booth-Kelly Lumber Co. v. Eugene, 67 Or. 381 ( 136 Pac. 29 ), is not like the instant case. There no direct trespass was committed upon the plaintiff’s premises. It claimed to be affected indirectly by an alleged interference with the navigability of the McKenzie River tending to deprive the plaintiff of convenience in floating logs to a waterway leading to its sawmill. In the instant case there is a direct and continuing trespass upon the real property of the plaintiff. _ It is a usurpation of the rights of the plaintiff by a corporation operating in its private capacity for the purpose of gain at least in part, although incidentally of convenience to the inhabitants of the city. The conduct of the municipality affecting the plaintiff is in violation of its charter, for that instrument authorizes it to acquire property, if necessary by condemnation, whereas to all intents and purposes it has appropriated the plaintiff’s property without right or compensation. This is as *174 unjust at the behest of a city as it is by the action of an individual, and should be enjoined. It is not shown that the plaintiff acquiesced in the construction of the plant. As a matter of fact, the testimony shows that he has been continually complaining to the city and trying to get an adjustment of his grievance, but without success. Moreover, as decided in Hallock v. Suitor, supra, even if the plaintiff had remained quiet and urged no objection, his right would not be prejudiced, because he did not participate in the enterprise in any manner.

4. Incidental to the authority to enjoin a continual trespass is the other function of settling and awarding the dámages already suffered by the plaintiff, so as to do complete justice between the parties. The testimony shows that when his ford across the stream was destroyed by the increased flow of water, the plaintiff was compelled to go along a county road paralleling the slough to a public bridge above his premises, where he could cross and come down the south side, through a neighbor’s land, in order to gain access to his fields and pasture on the south side. He testifies that the extra labor thus involved was reasonably worth at least $75 per annum covering the six years during which he had suffered this inconvenience. He claims on this account $400, and this seems to be a reasonable estimate of the damage incurred. The Circuit Court was in error in refusing to make a finding and award on this subject.

5. The plaintiff also complains that if the court was of the opinion that the increased flow of water in the slough caused by the action of the defendant should not be interfered with, it should have condemned, in effect, to the use of the defendant the land involved and fixed a price at which the latter could purchase *175 the same; failing in which, the injunction should be made perpetual. The objection to this is that the pleadings are not sufficient to support a decree tantamount to condemnation. It is not stated that the city wishes to acquire any interest in the premises, nor that it had tried to agree with the plaintiff upon a purchase price and had failed. There is nothing in the pleadings from which we could frame a description of the property which the plaintiff should convey to the city upon payment of the amount to be fixed as in a condemnation proceeding. There is no way by which we can directly compel the city to carry on such litigation or to purchase the property or any interest therein. We can only forbid the trespass and assess the damages already accrued. We cannot, however, rightly go so far as to destroy or impair the granted right of eminent domain which the city derives from its charter. The decree, therefore, will be modified so as to allow the plaintiff damages in the sum of $400 and perpetually to enjoin the defendant from changing the natural flow of the water through the plaintiff’s premises, subject and without prejudice, however, to the city’s right to condemn the property or such interest therein as it may desire, by an appropriate action at law. Modified.

McBride, C. J., and Benson and Johns, JJ., concur.