Tucker v. Kirkpatrick

169 P. 117, 86 Or. 677, 1917 Ore. LEXIS 168

• Court: Oregon Supreme Court
• Decided: December 18, 1917
• Status: Published

Opinion

Mr. Justice McCamant

delivered the opinion of the court.

1. The first question to he determined on this record is one of fact. The testimony is irreconcilable on the vital question of whether the contract was made as alleged. The lower court saw the witnesses and heard their testimony; his opportunities for determining the issue of fact arising on this conflicting testimony were better than ours and great respect is due to his findings: Scott v. Hubbard, 67 Or. 498, 505 (136 Pac. 653); Hurlburt v. Morris, 68 Or. 259, 272 (135 Pac. 531); Goff v. Kelsey, 78 Or. 337, 348 (153 Pac. 103); Shane v. Gordon, 84 Or. 627, 630 (165 Pac. 1167).

2. Plaintiff and his witness, George H. Frey, testify positively and clearly that in April, 1914, appellant sought an interview with plaintiff; that he informed plaintiff that his flume was worn out and would no longer carry water; that appellant was without means to repair it; that he agreed to give plaintiff and his neighbor, H. H. Gramps, one half the water if plaintiff would replace the flume; that plaintiff accepted appellant’s proposition at a subsequent interview, agreeing also as a part of the contract that appellant should have a right of way over plaintiff’s property to reach a county road on plaintiff’s north line; that pursuant to this arrangement plaintiff purchased four hundred feet of pipe in Portland and expended $118.50 for labor and materials; that as a result of this expenditure the flume was replaced by a pipe-line, the ditch was cleaned out and the water was made available to the parties, appellant assisting by his labor, for which he was not paid; that the water continued to flow over appellant’s premises and to be used by both parties for more than a year until August, 1915, when appellant shut it off.

These witnesses are corroborated by Earl N. Shahan, who testifies that appellant told him in July, 1915, that plaintiff was entitled to half the water in the ditch.

So far as the making of the agreement is concerned, appellant’s case rests wholly on his own testimony. He squarely denies that any agreement was made. He proves that the amount of water in the ditch is inadequate for his own purposes and argues that it is unlikely that he would make the contract alleged. The answer to this argument is that it appears that the flume required replacement and that appellant was without means to replace it. Unless the necessary work was done, the water would flow in its natural channel and would be available neither to appellant nor to plaintiff. Under these circumstances the contract alleged by plaintiff was a natural agreement for appellant to make.

Appellant admits that plaintiff purchased the pipe and paid laborers for putting it in place. He claims that plaintiff incurred this expense under an arrangement with Agnes Walls Parsons, to whom appellant gave an option to purchase his property. Mrs. Parsons was not called as a witness, nor does appellant testify to any agreement between her and plaintiff. The option was given May 5, 1914; it recited a cash payment of $175 and the evidence fails to show that anything further was paid on it. The purchase price called for by the option was $7,000. Appellant testifies that Mrs. Parsons surrendered her option in July, 1914. It is most unlikely that the holder of this option contracted for the permanent improvement of the place. The option is silent on the subject of a water right and appellant did not therefore lay himself open to an action for damages by entering into the contract alleged by plaintiff during the life of the option.

The admitted facts that plaintiff defrayed the expense of installing the pipe-line and that defendant co-operated by donating his labor strongly corroborate plaintiff’s testimony. On the whole case the preponderance of the testimony supports the conclusions of the lower court that the agreement was made as alleged.

3. Appellant contends that a parol agreement of this character is void. Plaintiff admits that the agreement is within the statute of frauds, but relies on part performance to take it out of the operation of the statute. In order that a parol agreement creating an interest in real property may be enforced, it “must-be clear, definite, just, reasonable and mutual in all its parts”: Wagonblast v. Whitney, 12 Or. 83, 88 (6 Pac. 399); Odell v. Morin, 5 Or. 96; Knight v. Alexander, 42 Or. 521, 524 (71 Pac. 657). We think that plaintiff’s proof satisfies these requirements. The part performance shown by the evidence is referable to the contract and under the Oregon decisions is adequate: Coffman v. Robbins, 8 Or. 278, 284; Combs v. Slayton, 19 Or. 99, 104 (26 Pac. 661); McBroom v. Thompson, 25 Or. 559, 566, 567 (37 Pac. 57, 42 Am. St. Rep. 806); Garrett v. Bishop, 27 Or. 349, 354 (41 Pac. 10); Bowman v. Bowman, 35 Or. 279, 281 (57 Pac. 546).

4. The decree of the lower court contained the following provision:

“That the plaintiff also has and'possesses the right to divert from said stream at said point, and through said ditch and pipe-line to said place, and for said purposes an additional one fourth of the water flowing in said stream until such time as there shall be paid to plaintiff by the owner of the land adjoining plaintiff’s said land on the south or by the defendant Geo. Kirkpatrick, the sum of $29.62, with interest from June 1, 1914.”

This language referred to that part of the water which belonged to H. H. Gramps, whose property adjoins plaintiff’s on the south. It may be that plaintiff is entitled to a lien or charge on this water, but such lien cannot be adjudicated in this suit to which Gramps is not a party. Plaintiff alleges that he is the owner of one fourth of the water in this ditch. So much of the decree as awards him a larger share is without the issues and should be eliminated. The decree, so modified, is affirmed. Neither party will recover costs on appeal. Modified.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.