Opinion by
Mr. Justice Moore.
1. It is contended that the court, by refusing to allow the defendant to file its amended answer, abused its discretion. The plaintiff alleged in her complaint that the defendant had a right of way across her lands, and the use of the ditch thereon, which was admitted in the answer. The only issue upon the question was as to the width of the tract subject to the right, and hence it was immaterial from whom the defendant obtained it. The transcript shows that objection was made to the introduction of evidence tending to show an adverse user outside of the reserved right of way, or an estoppel by the plaintiff’s seeming acquiescence in the construction of the dam or excavation of the ditch. “When,” says Lord, J., in Cook v. Croisan, 25 Or. 475 (36 Pac. 532), “the parties proceed with a trial, and evidence is received without objection, supporting material matters which are not set out in [43]*43the pleadings, the court may permit the pleadings to be amended to conform with the proofs. ” The right to amend a pleading so as to make it conform to the proof proceeds upon the theory that it presented the issues sought to be established by the evidence introduced and admitted without objection, but that some material allegation had been inadvertently omitted therefrom. In such cases it is the duty of the court, after the evidence upon the supposed issue has been introduced without objection, to permit the amendment; but when objection has been made to its introduction, the court has no authority to allow such an amendment, as this would have a tendency to invert the orderly mode of trial prescribed by statute, and lead to the practice of settling issues after instead of before trial, thereby returning to primitive methods. The plaintiff having made objection to the introduction of this evidence, there was no abuse of discretion in denying leave to the defendant to file its amended answer.
2. It is contended that equity will not relieve against a trespass when the injury is not irreparable, but susceptible of pecuniary compensation. “The practice,” says Lord, J., in Smith v. Gardner, 12 Or. 221, (53 Am. Rep. 342, 6 Pac. 771,) “of granting injunctions in- cases of trespass is of comparatively modern origin, and is a jurisdiction sparingly indulged, and only upon a state of facts which show that the injury would be irreparable, and the remedy at law inadequate to redress the wrong or injury complained of. When the nature of the trespass is such as must necessarily lead to oppressive litigation or a multiplicity of suits,"' or the injury goes to the destruction of the estate in the character in which it is enjoyed, or the trespass cannot be adequately compensated in damages,‘'and the remedy at law is plainly inadequate, a court of equity, in such or like eases, is authorized to interfere and grant relief by injunction.” In the case at [44]*44bar the evidence shows that the defendant threatened to widen the ditch beyond the limits of its right of way, and throw the material taken therefrom upon plaintiff’s land; to construct and maintain a dam, the backwater from which would destroy the ford used by the plaintiff and her husband; and to cut and destroy timber growing along the banks of the ditch outside of the right of way. The injury complained of is more than a mere trespass; it goes to the destruction of plaintiff’s estate. If the defendant could widen its ditch, and encroach upon and excavate the plaintiff’s land, without having it condemned, then the limits of its right would be bounded, not by its necessity, but by its desires, and financial ability to accomplish them. Ever since the feudal ages the title to and possession of real property has been considered a Valuable right, and courts of equity, since their organization, have used their power to protect this right, and by injunction have prevented encroachments upon such ; property which tend to diminish the owner’s estate therein. Commenting upon a similar contention in the case of Chicago and Burlington Railway Company v. Porter, 72 Iowa, 426 (34 N. W. 286), Rothrock, J., said: “It is further claimed that injunction is not the proper remedy; that the action should have been at law, for damages. We do not think this position is well taken. There can be no doubt that equity will enjoin encroachments upon land by making excavations, erecting permanent buildings, and the like.” The threatened destruction of the ford by the erection of the new dam would be an injury to a private easement appurtenant to plaintiff’s land, which equity will enjoin: Washburn’s Easements and Servitudes, 670. The injury complained of having threatened the destruction of plaintiff’s estate and private easement, and the defendant not having shown any legal right to widen the ditch beyond sixteen and one half feet, or to erect the [45]*45dam, except upon the old site, it follows that the decree must be affirmed and it is so ordered. Affirmed.
Mr. Justice Wolverton having been engaged in this case in the court below, took no part in the trial here. Free access — add to your briefcase to read the full text and ask questions with AI