Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-19

has brought an action in the above
entitled court against the defendant
for the purpose of condemning a
right Of way for its use in the con-
struction of a ditch tlume or canal
across and over the lands of the said
defendant; and, whereas, the plain
TN desires to commence the immedi-
ate construction, operation and main
tenance of its proposed ditch, flume
or canal and build the same at an
early date, which is necessary for its
use for the coming season: Now,
Therefore, the plaintiff herein, as
principal, and The American Surety
Company of New York, as surety are
| hereby bound unto the defendant, his
heirs and assigns, conditioned for the
payment of any and all damages and
compensation that may be awarded
to the defendant in the above entitled
action and to which the. said plain
tiff and the said surety hereby bind
themselves, their heirs, executors and
administrators firmly by these pres
ents. In witness whereof we have
hereunto set our hands and seals this
29th day of December, 1906"
That the undertaking was served
on Barry on January 5, 1907; that
Immediately thereafter the Pence
company took possession of the land
necessary for the construction of the
ditch, which it constructed across the
land that Barry filed his answer to
/ the complaint of the Pence company
in which he claimed s. damages
for taking the land: that thereafter
in June, 1907, the parties to the ac-
tion, through their attorneys of
record, entered into an agreement of
arbitration, which is as follows:
I'm the Circuit Court of the State of
Oregon, for Multnomah County.
The Pence Company plaintiff, V.
James Barry, defendant
Whereas, the plaintiff has institut-
ed proceedings against the defendant
to condemn a certain tract of land
belonging to the defendant, situated
in Multnomah county, Oregon and
particularly described in the COM
plant herein, to which reference is
hereby made as a part hereof, said
condemnation to be for the use and
occupation of said land for the pur-
pose of construction thereon ditch.
f1ume or canal; and whereas, the
parties are desirous of submitting the
question of the value of said land and
the damages to the remaining por-
tions of defendants property affect
ed by the construction of said ditch,
flume or canal to a board of arbitra-
ton.
Now, therefore, it is agreed by and
between the parties hereto, acting by
and through their respective attor-
neys of record as follows, to-wit:
Q) That for the purpose of this
agreement, the plaintiff is a corpora
ton duly organized and existing un-
der and by virtue of the laws of the
state of Oregon and among other
things, the object and purposes for
which said corporation was organ
lied and which it proposes to engage
in, were to divert and appropriate
water from lakes, rivers and streams
conveying the same in reservoirs,
and to use the same for domestic
purposes, sluicing, irrigation and de-
veloping electric power
(2) That the defendant is the own
er in fee simple and in possession of
the southwest quarter of section 80
township north, range 1, west of
the Willamette meridian, Multnomah
county, state of Oregon.
(9) That the plaintiff has done
every and all things necessary under
the laws of the state Of Oregon to
acquire the right to appropriate wa
ter to its use in order to carry into
effect the object and purposes of its
formation as a corporation, and it is
necessary to conduct water by means
of bitches, fumes and canals over
and across the lands OF the defend
ant.
(4) That the said ditch, canal or
flume is now constructed upon the
lands of the defendant and that the
land actually taken is as described
in paragraph 4 of the complaint here
in, to which reference is hereby
made for a particular description
thereof.
(5) That the plaintiff and defen-
dant have not been able to agree
upon the value of the right of way
as shown in the complaint and which
is necessary for the use of plaintiff,
nor have plaintiff and defendant been
able to agree upon the damages sus-
tained by defendant aside from the
amount of land actually taken by the
plaintiff.
CO. That in order to determine and
fix the damages sustained by defen-
dant on account of the taking of the
land described in the complaint and
! the damages sustained by the defen-
dant on account of the construction
of said ditch. canal or fume, it is
agreed that the same shall be sub
mitted to board of arbitration COM
posed of three persons. one of said
persons to be chosen by the plain
tiff, another by defendant, and the
third by the two persons so chosen
as aforesaid by plaintiff and defen-