Olsen v. Great Western Power Co.

THE COURT.

Plaintiffs sued defendant for trespass upon their lands. The suits were consolidated for the purpose of trial. A trial was had before the court without a jury and judgment was rendered for defendant that plaintiffs take nothing by their actions. From this judgment plaintiffs have appealed. The facts, in substance, are as follows:

Respondent had secured water rights in and about Lake Almanor for hydroelectric power purposes, including the privilege of flooding the lands adjacent to said lake. In the year 1926, respondent had under consideration the construction of a dam at the southern extremity of the lake where it empties into the north branch of the Feather River. This contemplated project would raise the waters of said lake above the 4,500-foot contour line, the result of which would be to submerge the then existing highway between Red Bluff and Susanville. Under these circumstances the state planned to raise the level of said highway where it would pass through said submerged area.

On May 27, 1926, the California highway commission and respondent entered into an agreement for the erection of the said embankment and the elevation of said highway above the said flooded area.

It appears from the letter written by respondent to the Red River Lumber Company on June 21, 192'6, that an understanding existed between them that they were to undertake jointly the construction of said highway embankment, the letter stating that respondent had contracted with one Phillips for the work, and that the said Red River Lumber Company was to pay a designated

pro rata

of the costs of construction.

On June 24, 1926, the said lumber company indorsed thereon its acceptance and approval of the contents of said letter. A more formal contract was entered into on July 13, 1928, between the respondent and the Red River Lumber Company, wherein it was stated that respondent, as the agent of the state of California and for it and in its behalf, had constructed the highway embankment aforesaid jointly with the Red River Lumber Company. This contract was

[712]

approved and accepted in all respects by the department of public works (said commission having been succeeded by said department).