Kelsey v. Bertram 63 Or. 563, 127 P. 777

Argued October 29,

decided November 26, 1912;

rehearing denied January 7, 1913.

KELSEY v. BERTRAM.*

(127 Pac. 777.)

Licenses — Use of Real Property — Revocation—stoppel.

Defendant, having by parol and without consideration authorized plaintiff to construct an irrigation ditch across his land and through and under his mill, is estopped from revoking such permission after plaintiff has expended a large sum of money in constructing the ditch.

Reporter.

From Union: John W. Knowles, Judge.

Statement by Mr. Justice McBride.

This is a suit brought by L. S. Kelsey to enjoin Charles Bertram from interfering with plaintiff in the construction of an irrigating canal across certain lands claimed by defendant and through or under a sawmill maintained and operated by said defendant. The complaint alleges that plaintiff is the owner of certain arid lands near the town of North Powder, in Union County, and that he is the owner of the right to build and construct an irrigating canal to ..convey the water from the tailrace of the North Powder Milling Company’s flouring mill, in said town, to his land near Clover Creek, in said county, said proposed canal being about seven miles in length, and also of a right granted by H. 0. Gorham, the owner of the land claimed by defendant, to construct said ditch over said land, for which property defendant had a lease for four years, expiring about October 1, 1911; that about April 27, 1910, while defendant was in possession of the property under the lease from Gorham, and while plaintiff was surveying and locating the line of said canal, he entered into an oral contract with defendant, whereby *564defendant granted him the right to construct and maintain the canal over and across said sawmill property, in consideration of which plaintiff agreed to furnish defendant and said sawmill property water from said canal to fill and keep full the log pond of said sawmill, and to build and maintain over the canal a suitable logway for transporting logs over the same to the log pond or mill; that thereafter, in pursuance of such agreement, plaintiff entered upon the construction of the canal, and during the summer, fall, and winter of 1910 built nearly all of it, at an outlay of over $5,000, and built said canal over all but about 30 feet of the sawmill property, and was proceeding to complete the same over the mill property, when he was stopped by defendant, who had plaintiff arrested for trespass, and threatened to continue such arrests from day to day and to hinder and delay plaintiff; that defendant’s lease has expired, but he still continues to interfere with plaintiff in his work, and threatens further so to do, unless plaintiff ceases to construct the canal across said premises. A preliminary injunction issued, and defendant answered by a generad denial, and also alleged ownership of the mill, and claimed that he was entitled to possession of the land by virtue of a lease from Gorham, which was made for six years, with an option to defendant to purchase the property at any time within six years, and that he still had the right under such lease to occupy the property for the term of-years, and during said time to become absolutely the owner of the premises by paying the price mentioned in the lease. Defendant denied having made any agreement whatever with plaintiff, or having given him any permission to construct his canal across the property, and alleged that the construction' of the same would irreparably damage the property and render the same valueless. The court found for the plaintiff on all the issues, and defendant appeals.

Affirmed.

*565For appellant there was a brief and an oral argument by Mr. Turner Oliver.

For respondent there was a brief with oral arguments by Messrs. Crawford & Eakin.