# Oregon-Wash. R. & N. Co. v. Reed > Oregon Supreme Court · December 27, 1917 · 87 Or. 398 URL: https://www.frixlaw.com/law-library/cases/6906131 ## Case - **Full name:** OREGON-WASH. R. & N. CO. v. REED - **Court:** Oregon Supreme Court - **Decided:** December 27, 1917 - **Citations:** 87 Or. 398; 169 P. 342; 1917 Ore. LEXIS 184 - **Precedential status:** Published - **Opinion:** On rehearing by Moore - **Judges:** Bean, Burnett, McBride, McCamant, Moore - **Cited by:** 14 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/6906131 ## Opinion text Rehearing denied January 29, supplemental petition for rehearing denied February 19, 1918. Petition for Rehearing. Department 2. Mr. Justice Moore delivered the opinion of the court. In a petition for a rehearing it is maintained by plaintiff’s counsel that in refusing to consider the question of damages alleged to have been sustained by the defendant, Minnie T. Reed, when it was found she had suffered no injury, the rule of law governing the cause was misapplied by this court. It is. argued that the complaint in her suit against the plaintiff herein not only sought a reformation of her right of way deed, on the ground of fraud practiced in procuring . it, but such pleading also averred that the plaintiff’s agents had trespassed upon her land by destroying fences, tearing out culverts, diverting water from its natural'channel and cutting brush and leaving it upon her premises to her damage, for the redress of which injuries she had no plain, speedy or adequate remedy at law; that such statements of fact constitute separate grounds for equitable interference; that issues were .joined thereon and evidence received in respect thereto; that because it was found the charge of fraud had not been established, that conclusion did *415 not render her suit without equity, as to the other matters set forth in the complaint therein, and hence the question of damages should have been considered and the decree affirmed, since a court of equity having secured jurisdiction for one purpose will retain the cause until the entire subject matter has been fully determined. 7. In states like Oregon where at all times the same judge presides at the trial of suits in equity and actions at. law as they are called, these forums are entirely separate and distinct, and the rule is so elementary that it needs no citation of decisions in support thereof, that when a court of equity obtains jurisdiction of a cause for a particular purpose, it will retain and exercise the power to hear and determine all the necessary incidents depending thereon, though they may involve purely legal matters as a part of the relief to be awarded. The decree in such a case is based upon the ground that equitable substance in the light of judicial experience necessarily easts a shadow, but when the essential equitable foundation is found at the trial to be insufficient, the legal superstructure undertaken to be erected thereon inevitably falls. As tending to uphold the legal principle contended for by plaintiff’s counsel, they cite and rely upon the case of Cody Lumber Co. v. Coach, 76 Or. 106 ( 146 Pac. 973 ). There the defendants Arthur T. Coach, Joseph M. Coach and Mary E. Cary, commenced an action at law against the plaintiff, the Cody Lumber Co., a corporation, to recover the amount of seven promissory notes executed by the latter. The corporation answered the1 complaint, and availing itself of the remedy prescribed by Section 390, L. O. L., filed as plaintiff a cross-bill in equity, alleging that the notes sued upon were subject to adjustment, in accordance with the terms of an *416 agreement whereby the sawmill tally of logs for the purchase of which the notes were given, should be settled, setting forth a copy of the contract. The averments of the cross-bill were denied by an answer which also set forth new matter as a separate defense. The allegations of such new matter were denied by the reply. Notwithstanding the interposition of a cross-bill, by express provision of the statute (Section 390, L. O. L.) stays the prosecution of á law action until a decree is rendered in the equity suit, the parties in the case mentioned stipulated that the action and suit should be heard and determined at the same time. The effect of such an agreement was to waive a trial by jury in the law action. From the evidence received in that case a judgment was given in favor of the holders of the promissory notes for the amounts thereof as demanded in the complaint in the law action, thereby impliedly finding that the cross-bill was without equity, from which final determination the corporation appealed. As no relief prayed for in the cross-bill was awarded by the trial court or upon appeal, any conclusion there reached is not controlling herein. 8, 9. A continuing trespass committed upon the real property of another, tending to a removal of earth or of any substance therein or permanently attached thereto, will usually be enjoined in a suit instituted for that purpose by the party sustaining the injury; Kitcherside v. Myers, 10 Or. 21 ; Mendenhall v. Harrisburg Water Co., 27 Or. 38 ( 39 Pac. 399 ); Allen v. Dunlap, 24 Or. 229 ( 33 Pac. 675 ); Bishop v. Baisley, 28 Or. 119 ( 41 Pac. 936 ); Muldrick v. Brown, 37 Or. 185 ( 61 Pac. 428 ); Chapman v. Dean, 58 Or. 475 ( 115 Pac. 154 ); Mathews v. Chambers Power Co., 81 Or. 251 ( 159 Pac. 564 ). These cases proceed upon the theory *417 that a trespass threatened or committed will injure or destroy the substance of the owner’s estate in the land, in the manner in which the premises have been kept or used. Where the recurrence of the injury is not reasonably to be apprehended, the remedy at law for the recovery of the damages inflicted is usually regarded as adequate, and relief by injunction will usually be denied: Garrett v. Bishop, 27 Or. 349 ( 41 Pac. 10 ). 10-12. The testimony given at the trial herein tends to show that the brush left upon Mrs. Reed’s land was cut by her permission along the right of way by the plaintiff’s agents, in order that a better view of the semaphore might be obtained by locomotive engineers having charge of trains going west from the tunnel. The cutting of the shrubs was therefore not a trespass. If, by leaving upon the land the brush when it should have been burned after it was cut, Mrs. Reed was injured, her remedy for the wrong thus inflicted was the expense reasonably to be incurred in removing the brush, and not the damages which might result by reason of her inability to use the land for grazing or other agricultural purposes. An action at law to recover the outlay thus necessitated affords an adequate remedy and no exigency exists for resorting to a court of equity. It also appears that the fences alleged to have been destroyed were the protecting inclosures put up along the lines of the original right of way by the plaintiff’s servants, which fences were removed and rebuilt by such employees along the revised lines. The authority thus to move these fences seems to be unquestioned, and if Mrs. Reed sustained any injury in consequence of the alteration, no reason has been dis *418 closed why she should apply to a court of equity for the recovery of damages iu this particular. 13. In building the altered roadbed a fill of earth was made west of the tunnel and a small brook originally flowing north was diverted from its channel and conducted in a ditch dug on the south side of the grade, whereby the water emptied into another stream which flowed through a culvert placed in the embankment. The testimony tends to show that by reason of this change water seeped from the ditch and percolated’ beneath the fill thereby making a part of Mrs. Reed’s land, north of the embankment, moist and injuring the premises for pasturage. It further appears that the united waters had so accelerated the volume in the stream as to cause a quantity of soil to be washed away from the banks of the augmented channel. It would thus seem that a continuing trespass upon her real property had been thereby committed by the plaintiff’s agents, and it remains to be seen whether or not injunctive relief can be awarded after the railroad has been built and is being operated. It must be admitted that if flowing water was diverted from its natural channel without Mrs. Reed’s consent, the change in the current would appear to be unauthorized: Hord v. Holston River R. Co., 122 Tenn. 399 ( 123 S. W. 637 , 135 Am. St. Rep. 878 , 19 Ann. Cas. 331, 336). A text-writer in speaking of the equitable remedy in a case of that kind, remarks: “To entitle one to relief by injunction against the_ construction of a railroad over his land, he must use due diligence in the assertion of his rights, since the relief will not be granted in favor of one who has been guilty of laches, and who has by his own conduct given an implied assent to the construction of the work which he afterwards seeks to restrain”: 1 High, Inj. (4 ed.) §618. *419 Another author in discussing this subject, observes: “The courts may, it seems, take into consideration the fact that companies are common carriers and quasi public in their nature, and refuse to grant an injunction for slight cause where it would prevent or obstruct the operation of the road and not only cause great injury to it, but also inconvenience the public”: 1 Elliott, Bailroads (2 ed.), § 628. 14. The revised line of railroad was completed and trains were operated thereon in September, 1908. Prior to that time the roadbed was graded and the water flowing in the brook had been diverted. The cross-bill herein was not filed until August 3, 1915. For nearly seven years Mrs. Beed, though living near the tunnel and aware of all the changes as they were being made, never applied to any court for redress of the injuries of which she now complains. Her long delay in this respect precludes equitable intervention in her behalf as to the diversion of the water and the destruction of the culvert, as originally built for that brook. If, therefore, Mrs. Beed has any remedy it is by an action at law and not by a suit in equity. 15,16. The facts alleged in the complaint in the suit in equity by Mrs. Beed against the Oregon-Washington Bailroad & Navigation Company might as well have been set forth as a separate defense in the latter’s suit in equity against her and her husband, and thereby have avoided the bringing of more than one suit. As she commenced a separate suit, however, for injunctive relief when it was unnecessary to do so, her complaint partakes of the nature of an equitable counterclaim. To this complaint a demurrer was interposed on the ground inter alia that there was no equity in the bill. The demurrer was overruled and an answer filed denying the material averments of the complaint and setting forth as a separate defense the facts in *420 substance as alleged in the complaint in the suit of the Oregon-Washington Railroad & Navigation Company against Mr. and Mrs. Reed, and praying for injunctive relief as therein sought. We do not understand the rule that an objection to the jurisdiction in equity comes too late after the defendant by his answer asks for affirmative relief, as announced in Kitcherside v. Myers, 10 Or. 21 , and followed in subsequent cases is controlling herein. Those cases are based upon the assumption that if either the complaint or the answer states facts showing a right to equitable relief, the pleading is sufficient for that purpose and jurisdiction of the cause will be taken. In the case at bar Mrs. Reed’s complaint inaugurating a separate suit, was sufficient to invoke an exercise of equitable jurisdiction. The affirmative relief asked in the answer to that complaint gave no further- right, and when her bill was found to be without equity, there remained no foundation upon which could be predicated her claim for damages. Such being the case, the motion should be denied and it is so ordered. Modified. Rehearing Denied. Supplemental Petition for Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice McCamant and Mr. Justice Bean concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6906131. Public record. Not legal advice.