
    Argued January 28,
    affirmed February 14, 1928.
    L. J. ADAMS v. S. HARMON and J. O. WILSON.
    (264 Pac. 356.)
    Municipal Corporations — Contractor Grading Street, Giving Surplus Dirt to Party Hauling It Away, Held Liable to Adjoining Property Owner Requesting Dumping on Convenient Place.
    Where contractor grading street through property owned by plaintiff gave surplus dirt excavated to party for hauling it away, after plaintiff had seasonably notified contractor that he claimed all surplus dirt excavated opposite his property, and designated convenient place where it could be dumped on property, contractor was liable to plaintiff, since contractor had no right to give away surplus dirt in such ease.
    Municipal Corporations, 28 Cyc., p. 848, n. 47.
    From Marion: L. H. McMahan, Judge.
    Department 1.
    Memorandum Opinion.
    Appeal by defendants from a judgment in favor of plaintiff.
    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; hut 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.
    For appellants there was a brief and oral argument by Mr. Custer E. Boss.
    
    For respondent there was a brief and oral arguments by Mr. L. J. Adams and Mr. W. C. Winslow.
    
   McBRIDE, J.

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 Pac. 331, 114 Pac. 933).

The judgment is affirmed.

Affirmed.

Rand, O. J., and Coshow and Brown, JJ., concur.  