dissenting.
I dissent. The original complaint in this case was filed on June 18, 1980, and for the purposes of this dissent it is assumed that a two year statute of limitations applies and that Oregon recognizes the tort of negligent misrepresentation under Restatement (Second) Torts, § 552.
The plaintiffs’ third amended complaint contains two causes of action and each cause contains two counts. This review concerns only the second count of each cause of action which alleges that the defendant acted in a negligent manner in one or more of the following particulars:
“(1) In representing to plaintiffs that irrigation water would be available for plaintiffs’ crops for the 1978 growing season when defendant knew, or in the exercise of reasonable care, should have known that irrigation water would not be available.
“(2) In failing to warn plaintiffs that irrigation water for plaintiffs’ crops might not be available.”
The first cause alleges damages on the Gun Club farm *166and the second cause alleges damages on the Gregg Farm. The two farms are more than one mile apart. The Gun Club farm is 39 acres in size and the Gregg Farm is 112 acres. The two farms are served by different branches of Unit Four of the defendant’s irrigation system. On April 18, 1978, the defendant informed the plaintiffs by mail: “Pipeline users may expect to receive water service about June 1, 1978, with a minimum of interruption.” At the trial there was testimony that the irrigation water was needed on the Gregg Farm on the first of June and on the Gun Club Farm on the first of July.1
As the majority points out, on May 28, 1978, a substantial leak or “blowout” occurred in the irrigation pipeline which served the Gregg Farm. By June 2nd the plaintiffs started pumping water from a neighbor’s pond to irrigate the crops on the Gregg Farm. This involved an expenditure of costs for a pump, pipes and labor. Later the plaintiffs were required to pump water from a second neighbor’s pond. None of the water pumped from the neighbors’ ponds was used to irrigate the crops on the Gun Club Farm. It was not until the end of June that the plaintiffs plowed up one-half of the bean crop on Gun Club Farm and replanted it.2
The jury awarded the plaintiffs $17,273.74 on the first cause for damages to the Gun Club Farm and $59,255.78 on the second cause for damages to the Gregg Farm.
From the above summary of the pleadings and the facts this writer reaches two conclusions: (1) The two causes of action are separate and apart from each other and the harm complained of did not occur at the same time in both causes; *167and, (2) when the statute of limitations began to run in both causes are questions of fact and the case should be remanded to the trial court for retrial.3
In Dowers Farms v. Lake County, 288 Or 669, 680, 607 P2d 1316 (1980), we said:
“There is no legislative history to tell us that the legislature intended the courts to apply different rules with respect to fixing the point in time when the limitations period commences to run in causes of action for damages for negligence under the Tort Claims Act than in such causes outside the Act. We had occasion to discuss in some detail the time from which the period of limitation should commence to run in such a cause in U.S. Nat’l Bank v. Davies, 274 Or 663, 666-668, 548 P2d 966 (1976) and concluded that ‘in a negligence case the statute of limitations should never start to run until the occurrence of the harm.’ 274 Or at 668. We went on to hold that the harm occurred when the plaintiff was aware, or should have been aware, that the harm was caused by the defendant” (Emphasis added; footnote omitted.)
There is a question of fact in this case as to when the plaintiffs were aware, or should have been aware, that the harm had occurred to the crops on the Gregg Farm because of the defendant’s alleged negligent misrepresentations. The majority opinion in effect concedes that there is a question of fact. In 304 Or at 154, it is stated: “They [plaintiffs] may have incorrectly concluded that, but for the blowout, water would have arrived on June 1. * * *. By mid-June the plaintiffs believed that water would not be available for at least two additional weeks.” Then the majority in 304 Or at 162 makes a leap that Carl Lewis, the long jumper, would be proud of by saying: “On June 1,1978, the plaintiffs knew that reliance on defendants’ representations regarding the availability of water was misplaced and had gotten them into a predicament in which they needed an alternative source of water.”
Reasonable jurors could have drawn different inferences and reached different conclusions as to when the plaintiffs were aware, or should have been aware, that the defendants’ negligent misrepresentation was causing damage to the plaintiffs’ crop on the Gregg Farm. While in the normal *168course of events, such knowledge might have been gained by the plaintiff by June 1,1978, because that was when water was needed and unavailable, the “blowout” masked the defendant’s responsibility in this case until later.
Likewise, reasonable jurors could have drawn different inferences and reached different conclusions as to when the harm first occurred on the Gun Club farm. If the majority is holding that the expense of obtaining an alternate supply of water triggered the running of the statute on the Gregg Farm, then it should follow that the statute was triggered on the Gun Club farm by the first expense of plowing up one-half of the bean crop. A reasonable jury could reach a conclusion that the act occurred after June 18,1978.
For these reasons both causes should be remanded to the trial court for retrial on proper instructions as the running of the statute of limitations.
Lloyd Duyck, one of the plaintiffs, testified:
“On Gun Club property we did not need water and had not asked for it and would not have needed it until approximately July 1. On the Gregg place we would like to have gotten water by around the 20th of May, if it were possible * * *. Definitely I had no reason to believe that it should not have been available approximately June 1 just like it was stated.”
The plaintiffs only sought to recover for crop damages. They did not seek to recover the cost of the pump and expenditures associated with it. Nor did they ask to be repaid for the cost of plowing up the bean crop. See Judge Newman’s dissent in the Court of Appeals, Duyck v. Tualatin Valley Irrigation Dist., 80 Or App 602, 609, 723 P2d 1043 (1986). Judge Newman’s analysis of this case is correct. Instead of supporting Judge Newman in his losing cause, this writer has elected to show that the majority in this court is wrong in this particular case under its own theory of when the causes of action accrued.
As the majority points out, the trial court refused to present the statute of limitations question to the jury.