wrongful diversion of water onto another’s land does not constitute trespass to land
How later courts described this case
- wrongful diversion of water onto another’s land does not constitute trespass to land
Written by the judges who cited it.
The opinion
On Petition eor Behearing
( 7 P. (2d) 996 )
BELT, J.
We adhere to the opinion on original hearing, that the Statute of Limitations precludes the plaintiff from recovering damages other than for those sustained within two years prior to the commencement of this action.
Dalton v. Kelsey,
58 Or. 244 ( 114 P. 464 ), is decisive.
However, after careful consideration of the record and the briefs submitted, we conclude there is merit in the contention of the plaintiff that this court should assess the damages and not remand the cause for a new trial. True, there was no segregation of damages in the verdict, for the various years in which loss was claimed, but, since the evidence relative to damages is uncontradicted and pertains to the differ
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ent years, it is' believed that it can be determined here, with- reasonable certainty, the amount- of damages which should be awarded for the two-year period prior to the commencement of the action.
It has been adjudicated that plaintiff has sustained damages by reason of the wrongful act -of the defendant company in depriving' him of water for irrigation purposes. It'is only the extent of plaintiff’s loss that remains to be determined. -
■This controversy has been in the courts so' many ■years that it has, no doubt, become vexatious to all parties concerned.
The direction in the original'opinion that the judgment be reversed and the cause remanded is withdrawn. In lieu thereof, it is hereby ordered that the judgment of the lower court be affirmed in the sum of $5,000. In view of the substantial reduction in the judgment rendered in the circuit court, defendant is entitled to its costs and disbursements.
Rand, Rossman and Campbell, JJ., not sitting.