# Patterson v. Horsefly Irrigation District > Oregon Supreme Court · April 21, 1937 · 157 Or. 1 URL: https://www.frixlaw.com/law-library/cases/3841726 ## Case - **Full name:** PATTERSON Et Al. v. HORSEFLY IRRIGATION DISTRICT Et Al. - **Court:** Oregon Supreme Court - **Decided:** April 21, 1937 - **Citations:** 157 Or. 1; 70 P.2d 33; 69 P.2d 282; 1937 Ore. LEXIS 97 - **Precedential status:** Published - **Opinion:** Addendum by Bailey - **Judges:** Bailey, Rand - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3841726 ## How later opinions describe it (automated extraction) - emphasizing that “unnecessary damage,” as often occurs from negligence, is at odds with exercise of eminent domain power, which arises from necessity of taking private property for public purpose ## Opinion text Petition for rehearing denied July 7,1937 On Petition por Rehearing ( 70 P. (2d) 33 ) BAILEY, J. In their petition for a rehearing the respondents Grace C. Patterson and J. G. Patterson, her husband, raise for the first time, so far as we have been able to. ascertain, an objection to the sufficiency of defendants’ exceptions to certain instructions of the court to the jury, which instructions were in our former opinion held erroneous. The appellants in their opening brief quoted instruction VII given by the court and stated that the question of the correctness of this instruction was the most important matter to be decided on appeal. The respondents concurred in that statement and proceeded to argue that the action was not a “proceeding for pure tort” and that it was not necessary for the plaintiffs to allege and prove negligence. Many pages of the respondents’ brief are devoted to a dissertation on the nature of plaintiffs’ action, and no question whatever is there raised as to the sufficiency of appellants’ exception to the giving of instruction VII. Inasmuch as the respondents have *28 not heretofore attacked the sufficiency of defendants’ exceptions to this and other instructions, any objection thereto must be considered as having been waived. In other words, this court cannot try the case piecemeal. In our former opinion we held that the court committed error in refusing to give an instruction requested by the defendants, relating to the liability of the directors of the irrigation district. In that requested instruction, which is set out in our former opinion, it was stated that the directors were not personally liable unless the jury should find that they had “acted wilfully and maliciously”. The respondents now call our attention to the fact that the words “wilfully” and “maliciously” should have been connected by a disjunctive and not a conjunction. This point is well taken, and the requested instruction was erroneous in that it placed upon the plaintiffs the burden of proving more than the law. required. Our former, opinion is therefore modified accordingly. Such modification, however, does not warrant a rehearing. The other grounds assigned for asking a rehearing are based on matters fully considered in our former opinion and again reviewed. We find that they are without merit, and in all respects except as above indicated we adhere to our former opinion. The respondents have also filed a motion requesting that costs be disallowed the appellants. No objection is made to any particular item of costs or disbursements, except as hereinafter stated. The principal ground for making the motion is that the respondents are the owners of 160 acres of land in Horsefly Irrigation District, which comprises approximately 4,000 acres; that as landowners in the district they are furnishing “their pro rata share of the expenses of this litigation; ’ ’ and that in the event that they are required *29 to pay costs and disbursements allowed to the appellants in this court they will be required to bear too great a part of the cost of litigation, inasmuch as they are also obliged as landowners in the district to pay their pro rata share of the additional expenses of litigation incurred by the district, not included in the item of costs and disbursements. Belative to the allowance or disallowance of costs in this court to the party prevailing here, attention is directed to McKinney v. Nayberger, 138 Or. 203 ( 295 P. 474 , 2 P. (2d) 1111 , 6 P. (2d) 228 ), where it was stated that “the rule generally applied where reversals are ordered and the cause is remanded for a new trial is that the allowance of costs incurred in the lower court must await the result of the trial which will eventually settle the controversy, but the costs following the entry of judgment in the lower court, and terminating with a reversal, are allowed to the appellant”. In a number of instances where the judgment appealed from in an action at law has been modified on appeal to this court and judgment here entered, costs have not been allowed to either party: Stabler v. Melvin, 89 Or. 226 ( 173 P. 896 ); Olson v. Heisen, 90 Or. 176 ( 175 P. 859 ); Miller Lumber Company v. Davis, 94 Or. 507 ( 185 P. 462 ); Lebb v. Peabody, 103 Or. 405 ( 205 P. 819 ); Obermeier v. Mortgage Co. Holland-America, 123 Or. 469 ( 259 P. 1064 , 260 P. 1099 , 262 P. 261 ); Richardson v. Investment Co., 124 Or. 569 ( 264 P. 458 , 265 P. 1117 ). In Dippold v. Cathlamet Timber Co., 98 Or. 183 ( 193 P. 909 ), an action was instituted to recover damages resulting from injury by fire to certain real property situated in the state of Washington. The question as to the jurisdiction of an Oregon court to determine damages to real property in another state was raised *30 for the first time in this court, where it was held that the circuit court was without jurisdiction of the subject matter, and the action was dismissed. It was held in that case that under the particular circumstances there involved — i. e., the failure to raise the jurisdictional question in the circuit court — neither party should recover costs in this court. The plaintiff in Levine v. Levine, 95 Or. 94 ( 187 P. 609 ), brought an action to recover from her divorced husband an amount alleged to be due her for care of their child, based upon a decree of divorce entered in Minnesota. She prevailed in the circuit court, but on appeal the judgment was reversed. With reference to costs, this court said: “Although this is an action at law and the appeal has resulted in a reversal, nevertheless, for the same reason that was given in Rowe v. Rowe, 76 Or. 491, 497 ( 149 P. 533 ), and on the authority of Stabler v. Melvin, 89 Or. 226, 232 ( 173 P. 896 ), we do not allow the defendant judgment for costs and disbursements and therefore neither party shall have judgment for costs.” Rowe v. Rowe, cited in the above excerpt, was a suit in equity to set aside a decree entered in the circuit court for Lane county, based upon a decree of divorce entered in the- state of California. As a reason for disallowing costs to the prevailing party, this court said: “* * * but, while we find ourselves unable by reason of the law to compel plaintiff in this proceeding to support his minor child, his conduct in refusing to do so is morally so repugnant to our sense of what decency requires of him under the circumstances that we will not require defendant to pay the costs of this appeal.” In all instances which have come to our attention in which this court has not allowed to the prevailing party costs and disbursements on appeal in actions at *31 law there has not been a complete reversal of the judgment appealed from, but merely a modification thereof, with the exception of Dippold v. Cathlamet Timber Co., supra, and Levine v. Levine, supra. This case does not involve any such unusual circumstances as were present in those instances and we see no reason for departing from the general rule announced in McKinney v. Nayberger, supra, that where there has been a reversal on appeal the prevailing party is entitled to costs and disbursements. The mere fact that the respondents are owners of 4 per cent in area of the land included in the district and may be assessed for a proportion of the district’s costs of litigation does not demand a relaxation of the general rule. It is further asserted that it was unnecessary for the appellants to bring to this court the entire transcript of testimony, for the reason that this court did not sustain the appellants’ contention that as defendants they were entitled to nonsuit and a directed verdict and that the questions that were determined by this court could have been passed upon by a bill of exceptions containing only a part of the transcript of evidence introduced in the trial court. The appellants in good faith assigned as error the refusal of the circuit court to grant a nonsuit and a directed verdict as to the individual defendants. In order to present those questions it was necessary to have a complete transcript of all the evidence. Moreover, the respondents have availed themselves of the entire transcript by requesting that we, under the provision of § 3, article VII of the constitution, re-examine all the evidence and enter such judgment as may be proper in the case. The petition for rehearing and the motion to disallow costs are both denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3841726. Public record. Not legal advice.