Mutual Irrigation Co. v. Baker City

110 P. 392, 58 Or. 306, 1910 Ore. LEXIS 82

• Court: Oregon Supreme Court
• Decided: August 3, 1910
• Status: Published

Opinions

Decided August 3, 1910.

Motion to Correct Transcript.

Opinion by

Mr. Chief Justice Moore.

1. This is an application to correct a defect in a transcript. It appears by affidavit that the defendants perfected an appeal from an adverse decision, and within the time limited therefor filed with our clerk a transcript, from which was unintentionally omitted a copy of the decree undertaken to be reviewed.

The appellant is required to send up a transcript on appeal, containing copies of the judgment or decree appealed from, of the notice of appeal and proof of service thereof, and of the undertaking on appeal, whereupon jurisdiction of the cause is secured. Section 553, B. & C. Comp. When, however, it satisfactorily appears by affidavit that the transcript is incomplete in any particular, the Supreme Court is authorized to make a rule on the clerk of the trial court, requiring him to certify as to such alleged omission, and, if true, to transmit a copy of the paper so left out. Section 554, B. & C. Comp. It has been the constant practice of this court for many years to construe these clauses of the statute with reference to each other, and when it has been made satisfactorily to appear that an appeal was perfected and a transcript filed in due time, from which some paper, order, judgment, or decree was inadvertently omitted, to supply the defect by rule on the clerk of the lower court. Thus in Byers v. Ferguson, 41 Or. 77 (65 Pac. 1067: 68 Pac. 5), a transcript on appeal contained a copy of a judgment lien docket, instead of a copy of the judgment complained of, whereupon the defect was remedied in the manner indicated.

[113 Pac. 9.]

Statement by Mr. Justice Moore.

This is a suit to enjoin interference with irrigating ditches in city streets. The facts constituting the basis of plaintiff’s right and the foundation for its attempted invasion are that R. A. Pierce caused to be laid out into lots, blocks, streets, and alleys, a tract of land which he designated as Baker City, a plat of which was filed in the proper office October 20, 1865. His right to the land having been contested, it was determined that the United States held the title to the premises, whereupon the Secretary of the Interior caused the lines run by Pierce to be retraced and a plat to be made October 8, 1868, but no express dedication of the streets appears to have been made. The United States, however, sold and conveyed lots in Baker City. J. M. Boyd secured the title to a tract of land joining the city boundary on the north, and in 1870 a ditch was dug from Powder River, a stream flowing northerly east of the platted land, commencing at a point near the southeast corner of the town site, and water thus diverted was conducted in ditches dug along the curbs of streets and furnished for irrigation. At the time of the diversion a ditch was constructed north along what would have been an extension of First Street to land joining the town site on the north, which tract was laid out as Boyd’s Addition to Baker City. A plat of this accession was filed February 20, 1872, but no lines appear thereon indicating the location or reservation of any ditches.

The principle thus announced is controlling, and hence the clerk of the lower court is directed to send up a certified copy of the decree from which this appeal is taken. Allowed.