Opinion
No. 74-1396-E-2, SC 24327
Petition for rehearing, filed March 14, 1977 Former opinion filed February 25, 1977
Petition denied April 19, 1977
In Banc
Appeal from Circuit Court, Jackson County.
Mitchell Karaman, Judge.
Thomas D. Melum, of Frohnmayer Deatherage, Medford, for the petition.
No appearance contra.
Before Denecke, Chief Justice, and Tongue, Holman, Howell, Bryson, Linde and Bradshaw, Justices.
PER CURIAM.
Petition denied.
Plaintiffs have petitioned this court for rehearing alleging the court was in error in construing the testimony of Max Wimmer relating to the raising of the level of West Second Street.
The opinion ( 277 Or at 320, 560 P.2d at 630) stated: P.2d at 630) stated:
"* * * Mr. Thrasher, when installing the culverts and improving West Second Street, caused the level of the surface of West Second Street to be raised 5 or 6 inches. * * *"
This statement is not entirely accurate. The witness Max Wimmer testified that the raising of West Second Street by Thrasher was from the ditch west.
The challenged statement ( 277 Or at 320, 560 P.2d at 630) of the opinion shall be amended as follows:
"* * * Mr. Thrasher, when installing the culverts and improving West Second Street, caused the level of the surface of West Second Street from the ditch west to be raised 5 or 6 inches. * * *"
The opinion will further be amended ( 277 Or at 324, 560 P.2d at 632) by striking the language commencing with the word "or" on line 28 and ending with the word "evidence" on line 29.
This correction does not change this court's opinion. The effect of the raising of West Second Street east of the ditch was based on a minimum raise of 8 to 10 inches which the evidence clearly proved. The opinion concluded only that the raising of West Second Street was probably a primary cause of the flooding. The basic thesis of the opinion was that plaintiffs failed to prove causation of the flood was defendant's fill.
Plaintiffs' petition for rehearing is denied.