Opinion
Argued January 28, 1928
Affirmed February 14, 1928
From Marion: L.H. McMAHAN, Judge.
Appeal by defendants from a judgment in favor of plaintiff.
For appellants there was a brief and oral argument by Mr. Custer E. Ross.
For respondent there was a brief and oral arguments by Mr. L.J. Adams and Mr. W.C. Winslow.
MEMORANDUM OPINION.
Defendants had a contract for grading a street in Silverton. The property through which the street ran was owned by plaintiff. Plaintiff seasonably notified defendants that he claimed all the surplus dirt excavated opposite his property, and designated a place where it could be dumped on said property, which place was in fact the most convenient place for that purpose. Defendants refused to dump the dirt on plaintiff's property; but contracted with another party that, if he would haul it away after defendants had loaded it, he could have it without charge. Hence, this action. AFFIRMED.
There was a convenient place where the defendants could have dumped the surplus dirt on plaintiff's property. Defendants saved themselves the expense of dumping it there by using plaintiff's dirt to pay Webb for hauling it away to a distant locality. They had no right to do this, and the case comes clearly within the rule laid down by us in Sharkey Co. v. City of Portland, 58 Or. 353 ( 106 P. 331, 114 P. 933).
The judgment is affirmed. AFFIRMED.
RAND, C.J., and COSHOW and BROWN, JJ., concur.