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Arrien v. Levanger

November 10, 1972

ARRIEN, RESPONDENT,
v.
LEVANGER, APPELLANT



Appeal from Circuit Court, Malheur County. Charles H. Foster, Judge.

William D. Cramer, Burns, argued the cause for appellant. With him on the briefs were Cramer, Gronso & Pinkerton, Burns.

H. Clifford Looney, Vale, argued the cause for respondent. With him on the brief were Swan, Butler & Looney, Vale.

In Banc. O'Connell, C.J. McAllister, J., specially concurring.

O'connell

This is a suit to enjoin defendant from trespassing upon plaintiff's land by the seasonal flooding of his land, and to recover damages for the alleged trespass. As an affirmative defense, defendant claims a prescriptive easement to flood plaintiff's land. The trial court granted the relief sought by plaintiff. Defendant appeals. The only issue on appeal is whether defendant acquired a prescriptive right to flood plaintiff's land.

In 1948, defendant's predecessor in interest erected a dam on his land creating what is known as Easterday Reservoir.*fn1 The reservoir is used to store water

which flows into it during spring when the rain and the snow pack from the adjacent watershed produce a runoff. The damages claimed by plaintiff resulted when the waters impounded by the reservoir backed up onto plaintiff's contiguous upland and destroyed his crested wheatgrass crop.

It is defendant's position that the inundation of a part of plaintiff's land from 1948 to 1970 gave him a prescriptive easement in plaintiff's land. The trial court held that the interference with plaintiff's land did not meet the requirement of continuity of use necessary to establish a prescriptive right, and that even assuming continuity of use was established, there was no evidence to prove that defendant's use was under "color of title" or "claim of right."

On appeal, plaintiff asserts in support of his position these two grounds relied upon by the trial court. In addition, he contends that the defendant's adverse claim must fail on the ground that defendant did not establish with sufficient definiteness the area claimed to be subject to the easement. We shall consider the last contention first.

The evidence established that the reservoir usually started to collect the runoff in February and the waters so collected were impounded until they were used during the irrigation period, which usually lasted until the end of April. Over the years there were variations in the extent to which the water spread over plaintiff's land, depending upon the amount of runoff for the particular year. One of plaintiff's witnesses testified that in terms of available water for irrigation during a 10-year period, about one third of the years were "very good" or "wet" years, one third "moderate" or "fair" years, and one third were "dry" years. He

also testified that during the "wet" years the impoundment of the water would cause plaintiff's land to be flooded. Likewise, in "fair" years plaintiff's land would be flooded, but to a lesser extent.

One of defendant's witnesses testified that four out of five years could be characterized as fair years and that in those years the water would "get on him [plaintiff] but won't get clear over him." The defendant and his son testified to the same effect and noted that the dam had "spilled" three times since it had been built. The district watermaster indicated that in 1965 the defendant told him that the dam had spilled in 1951, 1958 and 1962.

Other evidence establishing the existence and extent of the flooding of plaintiff's land included the testimony of Walter Gillespie, the County Surveyor, who interpreted a stadia survey map which he had made in September, 1965. The map showed the area of land covered by the reservoir when various amounts of water were backed up by the dam. Gillespie correlated the water elevations at the dam with the contour lines on his stadia survey map. Upon the basis of the evidence elicited from Gillespie it appears that during the "wet" years the reservoir would encroach upon the plaintiff's land up to the 97.5 contour line drawn on the stadia survey map.

The plotted and projected contour lines on the stadia survey map were in substantial accord with aerial photo maps taken over the reservoir. By interpreting these maps, witnesses explained that it was possible to note the fluctuating course of the waters in the reservoir. These maps, made in 1954 (less than seven years after the dam's construction), showed that

water from the Easterday Reservoir had inundated the plaintiff's land ...


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