Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge. No. 76444.
R. Kent Gardner, Portland, argued the cause for appellants. With him on the briefs was B. G. Birch, Portland.
Edward H. Warren, Portland, argued the cause for respondents. With him on the brief were Hershiser, Mitchell & Warren, Portland.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
This is an appeal by plaintiffs in an action tried to the court for damages against the Fish Commission of the State of Oregon; Chris L. Wheeler, the state engineer; James W. Carver, the deputy state engineer; and Clayton J. Gardner, watermaster of district No. 1. The court below granted defendants an involuntary nonsuit on the ground the evidence failed to prove defendants' liability.
Plaintiffs owned and operated a trout pond in the Sandy River watershed near the Mt. Hood Highway in Clackamas County. The complaint states two separate causes of action:
(1). "* * * [T]he Defendants * * * entered upon Plaintiffs['] * * * property and wrongfully diverted the waters of Eddy Creek away from Plaintiffs' trout
pond so as to deprive Plaintiffs of their beneficial use * * * of the waters of Eddy Creek * * *.
"Plaintiffs have been wrongfully deprived of their property by Defendants * * *."
(2). Defendant Clayton J. Gardner wilfully or negligently misrepresented to plaintiffs that the use of the waters of Eddy Creek was and is restricted to those possessing a permit; and defendant Chris L. Wheeler through defendant James W. Carver wrongfully, negligently and contrary to law denied issuance of a permit applied for by plaintiffs. The only relief sought in the complaint was for damages.
The evidence showed that plaintiffs' operation consisted of a pond approximately 50-70 feet in diameter that was stocked with trout. The water for the pond was obtained by means of a four-inch pipe that carried water approximately 3,000-5,000 feet from near the headwaters of Eddy Creek on plaintiffs' property. The water flowed through the pond and out through a channel that eventually reached Cedar Creek. The amount of water flowing into Cedar Creek was not equal to the amount withdrawn from Eddy Creek. The amount of the difference was disputed.
The pipeline and pond had been constructed in 1954 and were not under permit of the state engineer ...