Edmunson v. Eugene Plywood Company ( 1948 )

Action by H.L. Edmunson and Minnie F. Edmunson, husband and wife, against the Eugene Plywood Company, a corporation, and Erminio Giustina, Anselmo Giustina, Natale Giustina, Madelena Giustina, Dorothea Giustina, and Ehrman V. Giustina, co-partners, doing business as Giustina Bros. Lumber Company for damages to land as result of negligently permitting water to escape from defendants' log ponds maintained on defendants' premises. From a judgment for the defendants, plaintiffs appeal.

AFFIRMED. Plaintiffs are the owners of a tract of land 138.17 acres in area in Lane County, Oregon. They brought this action to recover from the defendants the sum of $98,550.00 damages alleged to have been caused by water negligently permitted to escape from log ponds built and maintained by the defendants and reaching the plaintiffs' land.

The case was tried to the court without a jury under a stipulation that the evidence in the case of Conger et al. v.Eugene Plywood Company et al., 200 P.2d 936, this day decided, should apply so far as applicable. The court considered and decided the two cases together, and in each entered findings of fact and conclusions of law and a judgment favorable to defendants. Plaintiffs have appealed from the judgment in the instant case.

The evidence to support the allegations of the amended complaint, on which the case was tried, as to the alleged negligence of the defendants and the cause of injury to plaintiffs' land, is the same as that in the Conger case. The findings of fact are identical save for the findings identifying the parties and describing the land. Upon the question whether there is substantial evidence to support the Circuit Court's findings to the effect that the defendants' ponds have not leaked and that water from such ponds has not reached the plaintiffs' land, the opinion in the Conger case is applicable here; and since, as shown in the opinion in that case, there is substantial evidence to support the findings, they are binding on this court. Sextonv. Kelly, 200 P.2d 950, this day decided; Silver Falls TimberCo. v. Eastern Western Lumber Co., 149 Or. 126, 211,40 P.2d 703.

It follows that there should be the same decision, and the judgment is, therefore, affirmed.