Title: Bennett v. City of Salem et al. - Supreme Court of Oregon, in Banc. Argued and Submitted June 19, 1951
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Permanent Link: http://ufdc.ufl.edu/WL00004462/00001
 Material Information
Title: Bennett v. City of Salem et al. - Supreme Court of Oregon, in Banc. Argued and Submitted June 19, 1951
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Language: English
Publisher: 235 Pacific Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Bennett v. City of Salem et al. - Supreme Court of Oregon, in Banc. Argued and Submitted June 19, 1951 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 25
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004462
Volume ID: VID00001
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Full Text


Supreme Court of Oregon, in Bane
Argued and Submitted June 19, 19Z
Decided Sept. 26, 1951.
Gardner Bennett brought suit against
of Salem, Carl Guenther, and another
join diversion of water from river by th
of Salem. The Circuit Court, Marion
ty, Charles H. Combs, J., entered a decr
the plaintiff, and the named defendant
pealed. The Supreme Court, Tooze, J.
that plaintiff was entitled to injunctic
Decree affirmed.
1. Estoppel =52
To constitute an equitable estopp
estoppel by conduct, there must be a
representation, it must be made with k
edge of the facts, the other party must
been ignorant of the truth, it must
been made with intention that it shou
acted on by the other party, and the
party must have been induced to act
2. Estoppel e=87
Where predecessor of owner of
rights in river wrote letters advocatin
use by city of island in the river as loc
of city's new water infiltration system
voiced the opinion that there would
ample water for all needs of the cit
at no time did he suggest or contend
that city make direct appropriations
the running stream, and city, before r
ing its final determination to constru,
filtration system on island, caused an i
tigation and report to be made by
neers of its own selection, owner wa
stopped to maintain suit against city I
join it from diverting water directly
the river at times of water shortage.
3. Judgment @7713(2)
The doctrine of res judicata a
not only to what is actually litigated i
proceedings, but also to all matters v
the issues of the case which could
should have been litigated.
4. Judgment 0=717
A judgment is conclusive of all m;
properly belonging to the subject o
controversy and within the scope of t:
sues, so that each party must make the

of his case or defense, bringing forward all
aI* his facts, grounds, reasons, or evidence in
support of it, on pain of being barred from
1. showing such omitted matters in a subse-
quent suit.
5. Judgment 0=713(2)
t City If second action involves a right, title
to en- or interest as to which the judgment on the
e city first action is a conclusive adjudication, the
ee for estoppel must extend to every matter which
ts ap- might have been urged to sustain or de-
, held feat that right, title or interest even if the
)n. second action is different.
6. Judgment >735
Where city did not plead nor seek to
)el or prove an estoppel in proceedings in circuit
false court for adjudication of water rights, city
nowl- was barred from making claim of estoppel
have in subsequent suit by owner of water rights
have to enjoin city from appropriating water
ild be from the river during time of water short-
other age.
on it. 7. Waters and Water Courses =152(2)
Where proceedings for adjudication of
water water rights in river commenced in 1937
g the and they were not terminated until Feb. 1,
:ation 1945, and during that period of time plain-
i and tiff's predecessor in interest was involved in
Id be a contest concerned with his claim to 1,100
y but cubic feet of water per second, and claim
plate was finally allowed to the extent of 812
from cubic feet per second, and plaintiff's prede-
each- cessor in interest did not know what his
ct in- actual rights were while litigation was
nves- pending and plaintiff became owner of wa-
engi- ter rights on June 1, 1945, suit filed by
.s not plaintiff on Sept. 19, 1946 against city to en-
o en- join city from appropriating water from
from river during water shortage was not barred
by laches, in absence of any injury to city
because of delay in commencement of suits.

pplies 8. Waters and Water Courses @=143
.n the An appropriator of water is not enti-
vithin tied to waste it unreasonably.
i and 9. Waters and Water Courses C=143
What water an appropriator appro-
S priates must be devoted to a beneficial use,
matters and he is never entitled to divert more
f the water than is actually put to such use, rea-
he is- sonable transmission losses excepted. 0.
most C.L.A. 116-437.

772 Or.

Cite as 235 P.2d 772

10. Waters and Water Courses C=143
If there was any unreasonable waste
of water by water appropriator in connec-
tion with his use of amount of water
awarded to him by decree of circuit court,
it was duty of the water master to stop
such waste. O.C.L.A. 116-303.
II. Equity e-65(2)
Waters and Water Courses 0=152(8)
In suit by appropriator of water
against city to enjoin it from appropriat-
ing water from river during water short-
age, evidence sustained finding that there
was no wastage of water by water appro-
priator and that relief could not be de-
nied on ground that he came into court
with unclean hands. O.C.L.A. 116-437.
12. Waters and Water Courses Ct152(5)
In suit by appropriator of water
against city to enjoin it from appropriat-
ing water from river during water short-
age, wherein city did not plead wastage
of water by water appropriator as an af-
firmative defense, evidence of alleged
wastage was not admissible under city's
general denial.
13. Injunction eMI, 128
Injunction is an extraordinary rem-
edy and should not be granted except upon
clear and convincing proof.
14. Injunction e-24
There are situations where public
interest will be so seriously affected by
issuance of an injunction that court will
deny an application therefore, but each
case depends entirely upon its own pe-
culiar facts and circumstances.
15. Waters and Water Courses I52(8)
In suit by appropriator of water
against city to enjoin it from appropri-
ating water from river during water short-
age, evidence entitled water appropriator
to an injunction over objections of city
that injunction would seriously affect the

Chris. J. Kowitz and Allan G. Carson,
both of Salem (Carson, of Salem, on the
brief), for appellants.

Frank C. McColloch, of Portland (Koer-'
ner, Young, McColloch & Dezendorf, and
John P. Bledsoe, all of Portland, on the
brief), for respondent.

TOOZE, Justice.
This is a. suit for an injunction, brought
by Gardner Bennett, as plaintiff, against
city of Salem, a municipal corporation,.
Carl Guenther, and Floyd L. Siegmund,
water master, as defendants, and involves
rights to the use of the waters of the North-
Santiam river in Marion and Linn counties,
Oregon. The trial court entered a decree,
in favor of plaintiff and defendants appeal.
Plaintiff is the owner of a right to di-
vert and use 812 c.f.s. (cubic feet per
second) of water from the North Santiam ( T
river for power and manufacturing pur-
poses with priority of 1866. He acquired )
this right from his grandfather, A. D. Gard-
ner, on June 1, 1945. The defendant city
of Salem, Oregon Pulp and Paper Com-
pany, and Thomas Kay Woolen Mills joint-
ly own a right to divert anduse 254 c.s.
of water from said river for "power and
manufacturing" purposes with priority of
1851 The Qregon State Game Commis-
sion has the right to divert and use 50 1c.s.
of water from said river with priority s-
perior all other rights, dating in fact
"with the settlement of the country." The
defendant city of Salem is also the owner
of an additional, right to divert and use
22 c.. of water from said river for "mu-
nicipal use" with priority of Tulv 5. 1923.
This litigation is concerned with the exer-
cise of this latter right by the defendant
city of Salem.
On April 5, 1938, there was filed in the
office of the state engineer an order of the
circuit court of Marion county, dated Oc-
tober 26, 1937, wherein it was ordered that,
pursuant to the laws of this state, a cer-
tain cause then pending in said court be
transferred to the state engineer for deter-
mination in connection with the determina-
tion of all rights to the use of the waters
of the North Santiam river and its tribu-
taries. All notices required by law were
given by the state engineer, surveys and
examinations were made, and hearings

Or. 773


held. Thirty-nine contests were filed with
the state engineer in said proceeding. A.
D. Gardner, plaintiff's predecessor in in-
terest, was involved in eight of those con-
tests, either as contestant or contestee.
Pursuant to an order of the state engi-
neer, dated February 11, 1941, allowing
intervention in said proceedings by per-
sons holding certificates of water right to
the use of the waters of the said river and
its tributaries, the defendant city of Salem
intervened and filed its statement and proof
of claim, wherein it asserted the right to
the use of 22 c.f.s. of water from said river
for municipal purposes, with a priority date
of July 5, 1923. This claim by the defend-
ant city was allowed by the state engineer
and, together with the other rights herein-
above mentioned, was confirmed and final-
ly determined by a decree of the circuit
court of Marion county of date February 1,
Usually during the summer months of
the year. and particularly during the
months of Auust and Setember, the
quantity of water flowing in the North
Santiam river is less than the amount
awarded to the appropriators mentioned.
In the case now before the court, lainti
contended that after the Oregon State
Game Commission has taken its 50 c.f.s. of
water, and the city of Salem. Oreeon
Pulp and Paper Company, and Thomas
Kay Woolen Mills have taken their 254
c. .s. of water, he is entitled to the next 12
c.f.s. of water, or so much thereof as may
e available, before the defendant itof
Salem has any right to directly divert any
Water at all for municipal purposes.
The city of Salem owns a water system
for the purpose of supplying its inhabitants
with water for fire protection and domes-
tic use. It became the owner of this water
system in 1935, pursuant to a charter
amendment adopted in December, 1931. At
that time, and for many years prior there-
to, the Willamette river was the source of
the city's water supply. The charter amend-
ment authorized the acquisition of a new
source of supply. After a careful investi-
gation by the city's then water commission
and other city officials, the North Santiam

river was agreed upon as such new source,
and it was determined that the water should
be acquired through an infiltration system
to be installed on Stayton island, a tract of
land formed by the separation of the North
Santiam river into two channels, known
as the North channel and the South chan-
nel, for the length of the island. This
island lies about two miles upstream from
the city of Stayton and some eighteen miles
from the city of Salem.
The record discloses that the defendant
city's attention was first directed to Stay-
ton island by the said A. D. Gardner, and
in the course of the investigation preceding
a final determination to locate the infiltra-
tion system on said island, Gardner wrote
several letters in which he strongly advo-
cated the acquisition of this water supply
source. He also appeared personally be-
fore certain of the city officials. Gardner
was the owner of a part of the island
and of certain other lands through which
the city would need an easement for the
laying of its water line. Most of the in-
vestigation here alluded to was carried on
in the fall of 1935.
The city thereupon took steps to acquire
lands upon Stayton island and rights of way
for the pipeline from the island to Salem.
Installation was complete by October 1,
1937, at a cost of $900,000 for the infiltra-
tion system on the island and the pipeline,
the infiltration system costing $160,000.
The infiltration system adopted by the
city was well described by defendant Carl
Guenther, manager of the Salem water
department. In a system of this type
the water is not taken directly from the
running stream into a pipeline or settling
basin. The water is gathered by means
of perforated pipes, which are laid hori-
zontally underground, into a collection
chamber, from whence it eventually reach-
es a conduit leading to the place of use.
Some of the water was gathered into the
settling basins from three wells the city
had made upon the island, each having
a depth of 60 feet.
After the new water system was install-
ed on the island, and the delivery of water
to the city of Salem commenced about

774 Or.

Cite as 235
October 1, 1937, it soon became apparent
that there were not sufficient percolating
or seepage waters underneath the island to
supply the demands of the city. There
on, an intake, which apparently had been
installed upstream from the noint of diver-
sion of water by the Gardner appropriation
at the same time other installations
were made by the city. was opened dlrinc
a part of each year and particularly during
the summer months, permitting' water to
flow directly from the North ehnnel of
the North Santiam river over and innn thl
filter beds of the city on Stavton island.
The amount of water so diverted varied
from time to time, but it was agreed
between the parties at the time of trial
that 10.47 c.f.s. of water, which was the
actual diversion on August 26. 1946 rnre-
sented the amount directly diverted daily
from the river onto the filter beds.
This direct diversion of water by the
city is the bone of contention in this liti-
gation; it is the diversion which plantiff
seeks to enjoin. He prays an injunction
to restrain the city from making such di-
version in times of water shortage and
mandatory injunction directing the state
engineer and the water master to close
the intake valve at the point of this diver-
sion whenever less than 812 c.f.s. of water
enters the head of the diversion works of
As a part of a stipulation entered into
between the parties prior to trial, the de-
fendant city admitted that it has, since 1938
at times when there was insufficient water
in the stream to supply plaintiff's earlier
priority of 812 c.f.s. of water, diverted
water for municipal use from the running
stream through said 18 inch intake valve
situated above plaintiff's diversion works,
permitting the water thus diverted to flow
to a point on Stayton island where it per-
colates through the underground infiltra-
tion system into the transmission pipeline
of the city of Salem for use by its in-
habitants, and that it intends to continue
this practice unless restrained by order of
the court.
By its amended answer the city defends
on two grounds: (1) that plaintiff is es-
topped by certain acts and conduct of

P.2d 772
A. D. Gardner, his predecessor in interest,
from denying the city the right to so di-
vert the water; and (2) that the laches of
plaintiff and his predecessor in interest
prevents recovery. At the trial, over
plaintiff's objection, a third defense to
the effect that plaintiff is guilty of waste-
ful use of the water was urged by the
city, though not pleaded.
In his reply plaintiff pleaded the proceed-
ings wherein the relative water rights here-
inabove mentioned were determined, the
intervention of the defendant city of Salem
therein, and the failure of the city in that
proceeding to assert or claim that Gardner
was stopped to assert priority of right
against the city, or that he had been guilty
of laches.
As a part of its decree of February 1,
1945, the circuit court of Marion county de-
creed as follows:
"4. At any and every time
when the flow of said stream at the City's
point of diversion on the north shore of
Stayton Island falls below an amount
equal to the sum of-
"(a) the amount necessary to supply the
right adjudicated in the Adjudication De-
cree to the State Game Commission for
fishway, which amount shall always be
50 cu. ft. per second plus
"(b) such amount as may be necessary
to supply the adjudicated rights of the
Salem Power Right [City of Salem, Oregon
Pulp and Paper Company, and Thomas
Kay Woolen Mills] for power and other
manufacturing purposes, but never to ex-
ceed 254 cu. ft. per second plus
"(c) such amount as may be necessary
to supply the adjudicated rights of the
Plaintiff for power and other manufactur-
ing purposes, but never to exceed 812 cu.
ft. per second
the Water Master shall assume control of
the division of the waters of said stream
in that locality by adjusting, setting or
closing, as the case may be, all headgates,
valves or other diversion works as may be
necessary, and shall divide, regulate and
control the division of the waters of the
stream in accordance with the relative pri-
orities herein stated *


"5. The Defendant City of Salem and
and Defendant Carl Guenther, and all other
officers, employes of said De-
fendant City of Salem are from
and after October 1, 1949, unless otherwise
ordered by the Court, hereby permanently
restrained, enjoined and inhibited, from di-
rectly diverting from the running stream
of the North Santiam River more than 22
cubic feet per second at any time for mu-
nicipal use, and from diverting any water
whatsoever for municipal use through its
said 18" intake valve on Stayton Island or
through any other direct diversion facili-
ties whatsoever at any time when to do
so would leave insufficient water in said
stream to supply said adjudicated prior
needs and requirements of the Plaintiff."
As their first assignment of error defend-
ants assert that the lower court erred in
enjoining defendants in that the suit should
have been dismissed on the plea of equitable
SThis claim of estoppel is based largely
upon certain letters written by A. D. Gard-
ner in which he advocated the use of Stay-
Ston island as the location of the defendant
city's new water infiltration system and al-
so voiced the opinion that there would be
ample water for all the needs of the city.
He also suggested methods of construction
.of such system.
All of the suggestions made and opin-
ions expressed by Gardner had to do with
obtaining water by an infiltration process
on Stayton island, the development of an
underground source of supply from under-
ground waters. At no time did he suggest
or contemplate that the city make direct
appropriation from the running stream.
To the contrary, he warned the city that
he and the Salem Power Right used all of
the natural flow of the stream during the
dry seasons; that the natural flow was
muddy and unpalatable; and that in or-
der to get "pure, wholesome water," they
must go underground and seek it. The
record discloses that before reaching its
final determination to construct this in-
filtration system on Stayton island, the
city caused an investigation and report to
be made by engineers of its own selection,

with several of its officials making their
own independent investigation.
[1] To constitute an equitable estoppel,
or estoppel by conduct, there must (1) be a
false representation; (2) it must be made
with knowledge of the facts; (3) the other
party must have been ignorant of the truth;
(4) it must have been made with the in-
tention that it should be acted upon by
the other party; and (5) the other party
must have been induced to act upon it.
State v. Claypool, 1450r. 615, 28 P.2d 882;
Bramwell v. Rowland, 123 Or. 33, 261 P.
57; Oregon v. Portland General Electric
Co., 52 Or. 502, 528, 95 P. 722, 98 P. 160;
31 C.J.S., Estoppel, 67, page 254.
[2] At no place in the record does it
appear that defendants at any time claimed
that Gardner was guilty of fraudulent con-
duct; on the contrary, they admitted that
he had no intent to defraud. We have
examined the record with care, particularly
the Gardner letters in question, and we do
not find anything therein to sustain the de-
fense of estoppel. At most Gardner's state-
ments respecting the amount of water avail-
able from a Stayton island installation of
the type advocated were mere expressions
of opinion. There was an attempt made by
defendants to establish the proposition that
they relied upon what Gardner said. The
attempt was abortive, but even had the evi-
dence disclosed such reliance, it would have
been of no avail, because considering the
nature of the statements made and the
other circumstances of the case, defendants
had no right to rely thereon. To have
done so would have been to shut their eyes
to obvious facts; it would have been a
gross act of negligence on their part. But
the evidence in the record abundantly es-
tablishes the fact that defendants actually
relied upon their own investigation in finally
determining to install the system as and
where they did. There is no evidence in
the record which establishes even one of
the essential elements of estoppel by con-
duct, let alone all of them as is necessary
before the defense may stand.
[3-5] Furthermore, in the adjudication
proceedings terminating in the decree of the
circuit court for Marion county under date

776 .Or.

Cite as 235 P.2d 772
of February 1, 1945, and hereinabove re- barred from m;
ferred to, defendants had the right to set same extent as
up their claim of estoppel in their contest ly raised and de
of plaintiff's claim therein. All the facts As their seco
existed then which are now claimed as the fendants urge t
basis of defendants' defense herein. The is- the trial court e
sue there, as does the issue here, involved tion, because i
the use of the waters of the North Santiam slept on his rigl
river. Such a claim as defendants urge
here was necessarily involved in the issues [7] We find
of that proceeding. If an estoppel ex- The proceeding
isted, it was the duty of defendants to water rights ir
plead and prove it there. The doctrine of commenced in
res adjudicata applies not only to what is inated until Feb
actually litigated in a proceeding, but also period of time
to all matters within the issues of the case terest was invo
which could and should have been litigated. cerned with ,h
The rule is stated in 50 C.J.S., Judgments, water of said r
716, page 193, as follows: "The judg- extent of 812
ment is conclusive of all matters prop- ticipated in at
early belonging to the subject of the con- During the yeai
troversy and within the scope of the is- plaintiffs prede
sues, so that each party must make the know what his
most of his case or defense, bringing for- in no position t
ward all his facts, grounds, reasons, or that now before
evidence in support of it, on pain of being tive rights of
barred from showing such omitted matters finally determine
in a subsequent suit; and even if the second At the time o
cause of action is different, if the second February 1, 19-
action involves a right, title, or interest as aged man and
to which the judgment on the first action physical conditi
is a conclusive adjudication the estoppel act ordinary bi
must extend to every matter which might plaintiff became
have been urged to sustain or defeat that water right. I
right, title, or interest." construction of
See also First Nat. Bank of Burns v. sion system an
Buckland, 130 Or. 364, 280 P. 331; Lloyd- actions of defer
Garretson Co. v. Marvin & Co., 128 Or. ing water from
191, 274 P. 128; Spence v. Hull, 75 Or. the dry months
267, 146 P. 95, 146 P. 98; Yuen Suey v. a shortage. Hi
Fleshman, 65 Or. 606, 133 P. 803; Neil v. ber 19, 1946. T
Tolman, 12 Or. 289, 7 P. 103; Barrett v. the record which
Failing, 8 Or. 152. were in the sligl
[6] This court has directly held that delay as did o
the circuit court in an adjudication of of the instant
water rights under the water code is a were not depri
court of general jurisdiction, and its de- count thereof.
crees are res adjudicata and conclusive up- California Tru
on the parties and their privies. Tudor 2d 1057. The t
v. Jaca, 178 Or, 126, 139, 164 P.2d 680, 165 the question of
P.2d 770. In the adjudication proceedings As a third a
defendants did not plead nor seek to prove ants maintain t
an estoppel as claimed here, but they are not denying re
235 P.2d-49%

.Or. 777

making the claim here to the
though it had been express-
termined in that suit.
nd assignment of error de-
ipon us the proposition that
erred in allowing an injunc-
t is claimed plaintiff had
its and was guilty of laches.
no merit in this contention. 7
gs for the adjudication of
the North Santiam river
1937. They were not term-
ruary 1, 1945. During that
plaintiffs predecessor in in-
Ilved in eight contests con-
is claim to 1100 c.f.s. of
iver, finally allowed to the
c.f.s. Defendant city par-
least two of these contests.
rs of this pending litigation.
ecessor in interest did not,
actual rights were., He was
:o commence a suit such as
the court until the respec-
himself and the city were;
ed by decree of the court.
f the entry of the decree bon
45, A. D. Gardner was an
in such poor mental and
on as to be unable to trans-
usiness. On June 1, 1945,
Sthe owner of the Gardner
Ie immediately commenced
improvements to his diver-
i forthwith objected to the
idant city in directly divert-
the running stream during
of the year when there was
e filed this suit on Septem-
'here is nothing whatever in
:h indicates that defendants
test degree injured by such
ccur in the commencement
litigation. They certainly
red of any evidence on ac-
Montgomery v. Anglo-
st Co., 157 Or. 187, 68 P.
rial court correctly decided
assignment of error defend-
hat the trial court erred in-
'lief to plaintiff upon the


theory that plaintiff did not come into court
with clean hands.
[8,9] This contention is based upon a
claim that the evidence showed plaintiff
and his predecessor in interest to have been
guilty of an unreasonable wastage of wa-
ter. Unquestionably, an appropriator of
water is not entitled to unreasonably waste
it. What he appropriates must be devoted
to a beneficial use, and he is never entitled
to divert more water than is actually put
to such use, reasonable transmission losses
excepted. In re Water Rights of Deschutes
River and Its Tributaries, 148 Or. 389, 36
P.2d 585; Broughton v. Stricklin, 146 Or.
259, 277, 28 P.2d 219, 30 P.2d 332; In re
Waters of Umatilla River, 88 Or. 376, 168
P. 922, 172 P. 97; 116-437, O.C.L.A.
Defendants presented evidence to sup-
port their contention that the canals and
other facilities of plaintiff were old and in
a state of disrepair; that unreasonable
leakages occurred at the dams and at the
structures utilizing the water; and that
losses were noticeable along plaintiff's di-
version canal. There was a dispute in the
testimony respecting these claims, and evi-
dence was offered on the part of plaintiff
that he had expended approximately $50,-
000 in improvements and repairs and pro-
posed to make further improvements.
Whether the diversion system in use by
plaintiff and his predecessor in interest was
in a bad state of repair, and by reason
thereof there was an unreasonable wastage
of water, should have been determined in
the adjudication proceedings. The facts
urged here to support such claimed wastage
existed before and during the pendency of
those proceedings. This court has held
that all unreasonable wasting of water
should be suppressed by the court in ad-
judicating water rights. In re Water
Rights of Deschutes River and Its Tribu-
taries, supra. It is an issue involved in
every suit of that type. Defendants made
no such claim in the adjudication proceed-
ings as they make here. They are barred
from making it here for defensive purposes.
[10] Further, under the express pro-
visions of the statutes of this state, the

water master is charged with the duty of
preventing wastage of water, and this is a
continuing duty. 116-303, O.C.L.A. If
there is any unreasonable waste of water by
plaintiff in connection with his use of the
amount of water awarded to him by the
decree of the circuit court, it is the duty
of the water master to stop it. Broughton
v. Stricklin, supra.
[11,12] Moreover, there are two addi-
tional reasons why this contention of de-
fendants lacks merit. In the first place,
there is a dispute in the testimony with re-
spect to the alleged wastage of water by
plaintiff, and the evidence offered by de-
fendants to sustain their claim in that re-
gard is exceptionally weak and unsatisfac-
tory. The trial court correctly decided
the factual issue against defendants. In
the second place, and perhaps more im-
portant, all this evidence was wholly ir-
relevant and immaterial to any issue in the
case. The defendants did not plead this
alleged waste as an affirmative defense.
They contend that the evidence was admis-
sible under their general denial. We can-
not agree with them. Such a defense, if
at all material in this suit, is new matter
and to be available to defendants, should
have been pleaded. Under the issues as
framed by the pleadings, plaintiff had no
notice whatever that he would be called up-
on to meet such a charge of wrongdoing.
His first notice came during the course of
the actual trial when the evidence was of-
fered. It is obvious that such an attack at
that time would take him by surprise, and
it came at such a late date as to render it
impossible for him to fully prepare to meet
the charge. It is for just such reasons as
these that the law requires such defenses
to be affirmatively pleaded if they are to be
available to defendants.
Finally, defendants contend that an in-
junction should not issue because it will
seriously affect the public; that it might
deprive an entire community of sufficient
water for municipal use.
[13-15] We agree with defendants that
injunction is an extraordinary remedy, and
it should not be granted except upon clear

778 Or.

Cite as 23
and convincing proof. De Armond v.
Moon, 123 Or. 28, 32, 260 P. 1100. We also
agree that there are situations where the
public interest would be so seriously affect-
ed by the issuance of an iniunetion that the
court will deny an aonlication therefore.
Each case depends entirely upon its own
peculiar facts and circumstances. But the
instant case is not such a one as emandS
or justifies an application of such a rule.
Here, we are dealing with a municipal
corporation engaged in business for profit
in its proprietary capacity, as distinguished
from its governmental capacity. It has
admitted acts which constitute trespasses
upon the rights of plaintiff and proposes to
continue such trespassing unless restrained.
The amount of water it is wrongfully di-
verting at the expense of plaintiff when
figured in gallons per day, is very substan-
t. It is manifest that plaintiff is being
damaged by such unlawful diversions,
though it would be extremely difficult, if
not impossible, to measure that damage in
dollars and cents. Plaintiff does not seek

5 P.2d 772
damages in this suit; he simply asks that
defendants' wrongful acts be restrained.
We have held in many cases that a mu-
nicipal corporation when operating a mu-
nicipal works for profit is acting in a pro-
prietary capacity and is cnhiect tn all the
penalties and disabilities in connection
therewith that are imposed upon private
persons or corporations enawoe in a ;imi-
lr a.ivil. For example, see Butler v.
City of McMinnville, 126 Or. 56, 268 P.
760, 59 A.LR. 381.
We -know of no rule of law or equity,
nor has any been called to our attention,
that would give to a city engaeed in busi-
ness for profit the right to ignore with im-
punity or trample upon the lawful rights of
another, as the defendant eitv ha n hen
and is doing in this case.
The defendants are guilty of repeated
trespasses. Equity should and will inter-
vene to prevent a continuance theretf.
The decree of the circuit court is affirmed.
Plaintiff is entitled to costs and disburse-

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