Former opinion sustained on rehearing June 21, 1927. ON REHEARING. (257 P. 16.) Defendant appealed from a judgment for $3,110, recovered in a trial by jury. The case was affirmed by this court. (For opinion, see 253 P. 3.) The defendant filed a petition for rehearing, urging "a re-examination only as to one point." This point involves the sufficiency of the evidence.
FORMER OPINION SUSTAINED. The plaintiff, a lower riparian owner, brought an action for damages against the defendant company, an upper riparian proprietor, for loss sustained by plaintiff in his personal property, arising out of defendant's alleged negligence in the discharge of impounded waters through its dam. The defendant company is the operator of a sawmill located near the headwaters of the South Fork of the Siletz River, in Polk County. In carrying on its business, *Page 637 it maintains a large reservoir for floating logs, formed by constructing a dam 20 feet in length and about 40 feet in height. The reservoir thus formed, when filled with water, creates an artificial lake at least 500 acres in area.
The evidence shows that, on Sunday, November 20, 1921, the reservoir was full and the water was flowing over the dam, to a depth at one point of about one foot, and that the superintendent of the company, in order to lower the water in the reservoir, decided to release a portion of the impounded water through the gateway of the dam. This gate was about 18 by 18 feet. After working about two hours, some of the defendant's employees raised the gate six feet, but, upon being told by the superintendent that this was unsatisfactory, they raised it an additional six feet or thereabouts, thus permitting about 12 by 18 feet of water to escape into the channel of the river.
Plaintiff contends that the defendant released impounded waters in such quantities that it augmented the natural flood waters to the extent that it caused the damage to plaintiff's property alleged in the complaint. There is evidence of record that proves beyond peradventure that the freshet described in defendant's pleading was the natural result of an extraordinary rainfall and the watershed of the Siletz River.
That an upper riparian proprietor who has impounded the waters of a stream may release impounded flood waters through his dam without liability to a lower owner, provided he does not swell the natural flow of the stream below the dam to the damage of the lower owner, admits of no dispute: Weiss v. Oregon Iron Steel Co., 13 Or. 496 *Page 638 (11 P. 255); Teeter v. Nampa Meridian Irr. Dist., 19 Idaho 355 (114 P. 8).
The writer pauses to observe that the evidence might have supported a finding by the jury to the effect that the volume of water sweeping down the Siletz River was so great that the plaintiff would have been injured even though the gateway had remained closed. However, the jury having found to the contrary, the question before us does not involve the weight or preponderance of the evidence, or the credibility of witnesses. The question is: Does a search of the record disclose some competent evidence in support of the material allegations of the complaint? We are required to heed the fundamental law of this commonwealth, reading:
"The right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." Or. Const., Art. VII, § 3-c.
This language is too plain in statement, and too clear in meaning, to admit of construction or interpretation. It explains itself. A trial by jury is a trial by jury. It is not a trial by the court. The fact in controversy relates to the defendant's alleged negligence in releasing impounded waters in such a quantity that the volume of water flowing down the river was greater than that flowing into the reservoir; and the case was given to the jury upon the theory that the company had no right, under the then existing conditions, to open the flood-gate of the dam to such an extent that it permitted the impounded water to flow downstream from the dam in a quantity greater than that supplied to the reservoir by nature. *Page 639
Joseph Mortimer, an employee of defendant, testified that, when he was at the dam on Sunday morning, the water was running over the top, and that he, with others, under the direction of defendant, raised the gate six feet after working two hours in the attempt; that they then started back to the mill and met Mr. Powell, the superintendent, on the way. He further testified:
"He (the superintendent) said the water was still raising very rapidly up above, and we would have to raise it (the gate) higher. * *
"Q. How much did you raise the gate at that time? A. Well, I don't remember how much we raised it, but as near as I can remember we had it about, we figured, as much again as — as much as we had in the forenoon.
"Q. It would be about six feet more? A. Four to six feet more, something like that."
Witness testified that, when he reached home that afternoon, the water was much higher, probably "a couple of feet" higher, than when he had left in the morning, and that, when he saw the mill-pond the following morning, the water had fallen.
Huron Briggs, an employee who was at the company's dam when the water was running over the south end of the dam, testified:
"Q. When you opened the gate, how did the stream below compare with what it was when you got up there that morning? A. Well, naturally a good flow of water went out of there. It filled right up to a certain extent. * *
"Q. Could you form an idea to what extent the raised flow of the river below the dam as compared with the stage you say was — comparable with the water showing in the picture? A. Well, I should have thought it raised it right there about 4 feet." *Page 640
He further testified that the flow of the water "was pretty rapid. * * It roared considerably." He swore that, upon meeting Superintendent Powell after the gate had been partially opened, the superintendent, "said the water had not gone down like it should have, and we will have to go back and open it again — further — he asked how far we had opened it, and we told him and he said that."
Superintendent Powell testified:
"Q. Well, the water was flowing over the top of the dam? A. Yes, sir. * *
"Q. Now, you would not be impounding water after it once reached the level of the dam, would you? A. No, sir, I don't see why I should flood those houses and farms back there, why not let the water go on? * *
"Q. And you opened the gate in order to lower the water, didn't you? A. Yes, sir."
A circumstance of some weight tending to strengthen the plaintiff's case arises from the fact that the flood-gate of the dam was broken on Friday following the freshet, thus permitting the impounded waters to escape from the reservoir, and causing the river to rise eight or ten feet, at which height it remained for about three days. Witness Elmer Deetz testified, concerning the stage of the water, that he crossed the Siletz River about 9 o'clock on Friday morning after the freshet, and that, about noon the next day, the river was eight or ten feet higher than on the preceding forenoon though there had been no rain "to speak of at all; very light rain, if any." He further testified that he thought it took the impounded waters about three days to run out. Water was likewise poured into the channel of the river through the same gate during the freshet. *Page 641
That the plaintiff sustained injury from the overflow of his land and the drowning of his livestock by the flood waters is established beyond question. But, as to whether he was injured in his property by reason of the negligence of the defendant is, in the mind of the writer, a grave question. If there was no evidence in the case from which the jury could properly find that the defendant was negligent as alleged, in releasing the impounded water through the dam, then the court should have granted defendant's motion for a nonsuit. But, in the consideration of the testimony as a whole, which includes not only the oral declarations of the witnesses, but the exhibits showing the topography of the country, we find that there was some evidence in support of each of the several material allegations of the complaint. As we have pointed out, under our system of jurisprudence it was the duty of the jury to weigh the testimony and determine the credibility of the respective witnesses, and to determine where the evidence preponderated. Under the rules of evidence, the jury had the power to accept, or to reject, in whole or in part, the testimony of any witness. The jury likewise had a right to infer from the evidence that the defendant released the impounded waters of its artificial lake for the purpose of lowering the waters of the reservoir, and that, in accomplishing its purpose, it acted negligently, and to the injury of plaintiff. We have seen that the company, through its superintendent, directed the opening of the gateway in the dam. In obedience to his order, the gate was elevated about six feet. Soon thereafter the superintendent, observing that the water was yet rising in the reservoir, directed that the gate be further opened. It was then elevated to a height of approximately twelve feet, thus *Page 642 permitting a quantity of water 12 by 18 feet under pressure to pour into the river below the dam, and augmenting the flow of that stream. The superintendent seems to have been satisfied that, by elevating the gate 12 feet, his desire to lower the water in the reservoir was accomplished. However, he testified that the waters in the reservoir were never lowered below 11.51. Notwithstanding the testimony to the contrary, the jury doubtless found from the evidence that the volume of water flowing down the South Fork of the river below the dam was greater than the volume flowing into the artificial lake.
The defendant's legal rights were carefully protected by the charge of the court. Among its instructions, the court thus charged the jury:
"Defendant was under no obligation to impound or hold behind its dam any water naturally flowing into the mill pond on November 20, 1921, or at any other time. Such water would be the natural flow of the stream at the time, regardless of whether the stream was at flood stage, and defendant could permit it to flow past the defendant's dam without liability for any damage caused thereby.
"If you find from a consideration of all the evidence that the amount of water in defendant's reservoir was not reduced on November 20, 1921, and prior to the damage claimed by plaintiff, but if the level of the water in the mill pond remained the same, or increased during the day, the plaintiff cannot recover. It would be immaterial whether the water passing defendant's dam went over the dam or through the headgate which defendant opened.
"If you find that the defendant released from its mill pond an amount of water greater than was flowing into said mill pond, but you further find that a man of ordinary prudence would have done the same thing under like circumstances, your verdict would be for the defendant." *Page 643
The instructions to the jury were clear.
In passing upon defendant's motion for a nonsuit, we are governed by the rule of law which requires the court to consider all competent evidence of record in the light most favorable to plaintiff. This statement of law applies alike to defendant's motion for a directed verdict. In the consideration of such motions, not only must we deem plaintiff's testimony to be true, but we must give the plaintiff the benefit of every intendment and every reasonable inference that can be drawn therefrom. Where the evidence is free from conflict, and is susceptible of but one conclusion, the case is for the court. On the other hand, if more than one conclusion can be drawn from the facts, the case is for the jury: Galvin v. Brown McCabe, 53 Or. 598 (101 P. 671); Thienes v. Francis, 69 Or. 165 (138 P. 490);Hartford Fire Ins. Co. v. Central R.R. of Oregon, 74 Or. 144 (144 P. 417); Herrick v. Barzee, 96 Or. 357 (190 P. 141);Collins v. United Brokers Co., 99 Or. 556 (194 P. 458);Farrin v. State Industrial Acc. Com., 104 Or. 452 (205 P. 984), and the local cases there cited.
The former opinion is sustained.
FORMER OPINION SUSTAINED.
RAND, J., dissents.