Appeal from Circuit Court, Curry County. John C. Warden, Judge. No. 6409.
William E. Taylor, City Attorney, Gold Beach, argued the cause and filed the brief for appellant.
Robert F. Walberg, Coos Bay, argued the cause for respondent. With him on the brief were Walsh, Chandler & Walberg, Coos Bay.
Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.
The complaint in this tort action alleged plaintiff's home was negligently damaged by ground waters wrongfully diverted by the defendant city from its normal flow along a publicly maintained street. It charged negligence both in the form of improper ditching and in the failure to properly maintain a city culvert under the street. The city conceded in its answer that the plaintiff's property "'* * * is subject to flooding and overflowing by surface waters from the adjoining street and property as a part of a natural drain way * * *'" and that the damage to his home was caused solely by this natural process rather than because of any negligence by the city. It also alleged as a second affirmative defense that the city had acquired prescriptive rights to have its street
surface water overflow onto plaintiff's property by its own adverse use for more than ten years openly and hostile to the plaintiff's rights.
The jury returned a verdict in plaintiff's favor. In its appeal the city asserts two assignments of error. The first is that the court erroneously removed from the jury its second affirmative defense of prescriptive right to have the surface water flow across plaintiff's property for more than ten years. The second relates to the striking of certain opinion evidence offered by the city relating to the value of plaintiff's home before and after damage.
The court struck the second affirmative defense because of insufficiency of the evidence to support it. In its brief the city states:
"* * * It must be conceded that there is no direct evidence contrary to this statement. However, it is submitted that there was sufficient indirect evidence to raise the issue that the water flow was no different at the time claimed than it was before, and thus the issue of prescription was improperly excluded."
In effect, the city, through the testimony of a city employe, attempted to show that neither its method of street maintenance nor the flow of water along the street had changed for at least 16 years, and thus by implication that the street surface waters must have regularly flowed during rainy seasons across plaintiff's property, and, if we understand its contention, even through his home. We agree with the trial court that there was clearly insufficient evidence to support the claim of acquisition by the city of a right by prescription to have its surface waters flow across plaintiff's property and through his home in the manner established
by the evidence. Merely because a city employe testified that he had been on the street in front of plaintiff's home and had seen surface water flowing from the street onto plaintiff's property does not support a conclusion that such condition was created or permitted by the city in the assertion of an open, notorious, hostile and exclusive possession against the admitted ownership of the plaintiff. Laurance et al v. Tucker, 160 Or 474, 85 P2d 374 (1939); Harris v. Southeast Portland Lumber Co., 123 Or 549, 262 P 243 (1927). Nor was there any direct testimony that plaintiff's home itself had been flooded other than during the last two or three years prior to the filing of the complaint. ...