Thomas v. Booth-Kelly Co. , 52 Or. 534 ( 1908 )

Mr. Justice Moore

delivered the opinion of the court.

1. It appears from the uncontradicted affidavit of the defendant’s attorneys that, after this cause was determined in the lower court, the plaintiff executed to their client a deed, c'onveying to it 29.35 acres of land, through and along which two of the specified streams flow, which tract is a part of the premises described in the complaint; and, based on the sworn written declaration, it is contended that the appeal should be dismissed. The rule is settled in Oregon that evidence dehors the record is admissible in this court to establish the fact that, since a judgment was rendered or a decree given, the party appealing therefrom has so dealt with the subject-matter of the suit or action as to preclude him from further asserting his alleged right on appeal: Moore v. Floyd, 4 Or. 260; Portland Con. Co. v. O’Neil, 24 Or. 54 (32 Pac. 764) ; Ehrman v. Astoria Ry. Co. 26 Or. 377 (38 Pac. 306) ; Bush v. Mitchell, 28 Or. 92 (41 Pac. 155) ; Moores v. Moores, 36 Or. 261 (59 Pac. 327) ; Merriam v. Victory Mining Co. 37 Or. 321 (56 Pac. 75: 58 Pac. 37: 60 Pac. 997) ; Livesley v. Johnston, 48 Or. 40 (84 Pac. 1044).

2. The testimony given at the trial has been examined with care, and, if it conclusively appeared therefrom that the relief which the plaintiff originally sought should have been granted, the conveyance referred to makes such an award impossible, for it is not manifest from the affidavits mentioned that any reservation was made in the deed of a right to a continuation of equitable intervention as to the remainder of the real property which might be affected by the alleged overflow, or by the driving or storing of sawlogs in the streams specified. The plaintiff at the trial, referring to the injury to his land which he maintains he sustained, testified as follows: “I consider the value is lost on about 10 or 15 acres, taken on the whole place.” It will be remembered that he conveyed to the defendant a greater area of land, and, in the absence of any reservation in the deed, it must be taken for granted that he thereby released to the defendant all claim to injunctive relief as against the entire premises, including any injury thereto.

3. Believing that the deed brings the case within the legal principle announced in the cases adverted to, the appeal must be dismissed, and it is so ordered.

Dismissed.