Daily capital journal. (Salem, Oregon) 1903-1919, 1914-07-07
DECISION So SILLY
THAT IT PROBABLY
IS VERY GOOD LAW
Supreme Court Holds MUS
ance Can't Be Anticipated
or Prevented
AFTER CITY SPENDS
MONEY FOR SEWERS
1t Can Be Enjjoined From U.s.
ing Them and Courts Can
Then Decide

The city of Silverton may be permit
ted to construct its sewer and empty
sewage into Silver creek, according to
decision handed down by the su-
preme court this morning. The su-
preme court reverses Judge Galloway
of the circuit court for this county. The
suit was brought by the state board
of health, consisting of Andrew U.
Smith, G. j. Smith, Il. A. Pierce, Al
fred Kinney, W. b. Morse, Il. B. Pick
ell and Calvin s. White, against the
city of Silverton to "njoin :, ----- 80
tying its sewage into Silver creek.
Silver creek flows through a thickly
populated agricultural section and its
waters are used for watering live
stock.
Judge Galloway granted an injunc'
ton and the case was appealed by the
city of Silverton to the supreme court.
Justice Eakin wrote the opinion with
Chief Justice Mcbride, and Justices
McNary and Ramsey concurring, JUS
tice Bean not sitting.
Tn writing his opinion, Justice Eakln
quoted:
Injunction is proper remedy to
Can Only Act After the Fact.
abate nuisance, but it is not every
ease in which it will be granted in the
first instance. If the discharge OF
sewage into the stream does not consti-
tute u nuisance, an injunction VIII DC
refused. And in view Of the pupnc
necessities involved, the court will be
slow in granting the injunction II any
other form of relief is available. Tne
Injunction will also be refused If the
nuisance is merely anticipated. /" The
opinion continues: 'Again it is noted
that the authority does not justify ar
bitrary action; that If the properly
does not constitute nuisance, the
hoard has no power TO interfere with
it. The plaintiff has not established
the fact that public nuisance mas
been created, and is not entitled TO an
Injunction. The case is therefore re-
verse1 and the suit dismissed.
Judge Galloway held that 1t would
NOT nc necessary for the city to first
instruct it's sewer outlet to the banks
of the creek and granted the inlunc-
tiCn to prevent needless expenditure
cf money on the pvt of the city III
casp the sewer could not be used by
the city.
Appellant Pays Costs.
Another suit appealed from Marion
county was that of W. F., Miller
AGAINST George n. Beck, a suit involv-
inc the opening of street. The de-
cision of Judge Kelly in the lower
court was reversed and the case re-
manded. -.
A small case showing the ntrieacies
, of the legal machinery of the country
, was that of H. +. Nicholson, of the
Interior decorating company against
Fred Newton, appealed from ClatsoP
county. In the justice court where
/, , this ease was first tried, Nicholson got
Judgment for $lS against Newton.
Newton appealed to the circuit court
and was given five days to file an
= undertaking. The undertaking was not
. filed within the time limit but Newton
e appeared in court with witnesses
$ costing $1,000 TO try the case. The
= iudpe overruled the motion of New
toms attorney and denied trial as the
o undertaking was not filed within the
/. time limit. Newton then appealed to
e the supreme court and asked a judg-
I ment for the sum expended to procure
e his witnesses in the circuit court. AZ
h the witnesses were neither needed nor
G used the supreme court decided that
g A man cannot eat his cake and have
f it, so the Judgment of the lower court
;. was affirmed and the appellant must
t. pay costs. -.
The other decisions were as follows;
William Horsfall VS.. William Logan
ID appellant, appealed from Coos; suit tC
IN recover money Judgment for profes
70 sional services, affirmed.
il. John Merandas. administrator of th'
h. estate of John Thalasinos, VS.. l.. Il
ID Watts & Co., appellant; appealed from
v. Lane; action to recover damages TO
as death of plaintiffs deeedent, affirmed
v. First National Bank of North Bend
appellant, VS.. w. w, Gage, sheriff o
Coos; suit to enjoin the sheriff from
or selling certain property under exeeu
he tion, reversed.
10 r. X Anderson, administrator of tn
y. estate of II. A. Williamson, VS.. Emm
nd c. Robinson, appellant; appealed froI
a Josephine; petition for rehearini
ey denied,