State v. Beaver Portland Cement Co.

Oregon Supreme Court

State v. Beaver Portland Cement Co.

126 P.2d 1094, 124 P.2d 524, 169 Or. 1, 1942 Ore. LEXIS 65

CourtOregon Supreme Court

DecidedFebruary 11, 1942

StatusPublished

Cited by5 cases

This text of 126 P.2d 1094 (State v. Beaver Portland Cement Co.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Beaver Portland Cement Co., 126 P.2d 1094, 124 P.2d 524, 169 Or. 1, 1942 Ore. LEXIS 65 (Or. 1942).

Pincite

Opinions

BAILEY, J.

This suit was instituted by the state of Oregon, acting by and through the state game commission, to enjoin the construction and maintenance by the defendant, Beaver Portland Cement Company, an Oregon corporation, of a hydro-electric project on the Rogue river in Jackson county, Oregon. From a decree dismissing the suit the plaintiff has appealed.

The hydro-electric project here involved is on the west bank of the Rogue river about three-fourths of a mile north of the city of Gold Hill. There the river drops over twenty-two feet in a distance of two thousand eight hundred feet, and that location has been used ever since 1882 for the development of water power. From 1913 to 1926 the city of Gold Hill maintained and operated a power plant at that location.

In July, 1926, the defendant was granted a lease by the city to operate the power plant, with an option to purchase it, and in 1936 the city sold and conveyed to the defendant the real property on the west bank of the *4 river on which the power plant was constructed, together with other lands along that bank, and in addition “all water rights owned by the city of Gold Hill on the sixth day of July, 1926, including, among other things, the following:” adjudicated water right of Oregon Water & Power Company to two hundred twenty cubic feet per second of the waters of Pogue river for the development of seven hundred fifty theoretical horse power; water right obtained by permit from the state engineer February 20, 1917, for one hundred forty-seven cubic feet per second for the development of five hundred theoretical horse power at the point of diversion; water right awarded to the city of Gold Hill on May 26,1927, for nine hundred eighty cubic feet per second; and the interest of the city of Gold Hill in a water right adjudicated to Neilson and McClure for seventy-five cubic feet per second, with priority as of 1879.

In consideration of this grant the defendant agreed, among other things, to supply, pump and deliver into the water mains of the city of Gold Hill “all water which may be required for domestic and municipal use ’ ’ and to supply the city, “from the present power plant ... or from such other source of supply as may be furnished” by the defendant, “such amount of power for municipal lighting purposes as the city” required on July 6, 1926, and any additional power required, at a rate stipulated.

Soon after the defendant leased the plant, it had plans prepared for the reconstruction of the project; and shortly prior to September, 1930, preliminary work in connection therewith was started. However, before any appreciable amount of Work had been done by the defendant, a suit was filed in the United States district *5 court for Oregon by California-Oregon Power Company to restrain the defendant from proceeding with its reconstruction work. California-Oregon Power Company owned the land on the east side of the Bogue river opposite the proposed project, and it asserted that the contemplated reconstruction work would interfere with its riparian rights to the waters of that river. Upon the filing of that suit a temporary injunction was issued, which prevented the defendant’s doing any further work until that litigation was concluded.

The decree of the district court therein required the defendant to maintain the level of the water in Bogue river “at the point of diversion at the most northerly end of the wing dam proposed to be constructed’ ’ at an elevation of at least 1,070.056 feet above sea level. The decree further provided “that neither the wing dam nor the plant proposed to be constructed, shall be so constructed, maintained or operated as to permit any of the \vaters of Bogue river to flow from the east channel thereof to the west channel below the above designated point of diversion”. This decree was affirmed by the United States circuit court of appeals (73 P. (2d) 555) and by the United States supreme court (295 U. S. 142, 79 L. Ed. 1356, 55 S. Ct. 725).

The nature of the river and the character of the present and proposed reconstruction can best be explained by reference to two drawings, respectively designated as plat II and plat III, taken from the brief of the respondent corporation and herein inserted.

Plat II shows the project as originally constructed and the changes made therein as required by the decree of the federal court and contained in the plans filed by the defendant with the state engineer and by him approved. The old diversion dam, shown on the map by

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