Atchison, Topeka & Santa Fe Ry. Co. v. Hamilton Bros.

• Decision Date: 31 December 1951
• Docket Number: No. 14397.,14397.
• Citation: 192 F.2d 817
• Parties: ATCHISON, TOPEKA & SANTA FE RY. CO. v. HAMILTON BROS., Inc. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

192 F.2d 817 (1951)

ATCHISON, TOPEKA & SANTA FE RY. CO. v. HAMILTON BROS., Inc. et al.

No. 14397.

United States Court of Appeals Eighth Circuit.

December 4, 1951.

Rehearing Denied December 31, 1951.

Donald H. Sharp, Kansas City, Mo. (John H. Lathrop, Sam D. Parker, and James F. Walsh, all of Kansas City, Mo., on the brief), for appellant.

Albert Thomson, Kansas City, Mo. (Johnson, Davis, Thomson, Van Dyke & Fairchild, Kansas City, Mo., on the brief), for appellees.

Before SANBORN, THOMAS and COLLET, Circuit judges.

THOMAS, Circuit Judge.

This is an appeal by the defendant in the district court from a judgment for damages entered upon the verdict of a jury.

The plaintiffs and the interveners are the owners and their tenants of farm lands situated in the Henrietta Drainage District in Ray County, Missouri. The district is drained by Willow Creek which flows across the defendant's right of way and empties into the Missouri river about three or four miles distant.

The plaintiffs and the interveners all allege in their petitions that the defendant has violated § 5222 of the Revised Statutes of Missouri, 1939, V.A.M.S. § 389.660, which in pertinent part provides: "It shall be the duty of every corporation * * * operating any railroad * * * to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad * * * so as to afford sufficient outlet to drain and carry off the water, including any surface water * * * whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad * * * and any corporation, company or person failing to comply with the provisions of this section shall * * * be liable for all damages done by said neglect of duty, and each neglect of duty shall be a separate offense."

And it is alleged that the negligent violation of the statute by the defendant in June and July, 1949, caused the surface water, the water flowing in Willow Creek, and other water to be impounded on, to overflow, to wash out the levees, and to flood the lands owned and leased by the plaintiffs, resulting in the damages complained of.

The alleged negligent acts complained of are:

(a) That the defendant negligently and unlawfully constructed and so modified its bridge over Willow Creek that the piling and joists supporting the bridge were set at such an angle and so close to each other that (1) the water flowing in Willow Creek was partially blocked; (2) was prevented from scouring out the channel; and (3) that as a result brush and other debris lodged in the piling obstructing the flow.

(b) That prior to and during 1949 the defendant constantly dumped a thick mixture of soda ash in the creek adjacent to and under the bridge which further obstructed the flow of water under it, resulting in the damages complained of.

As owner of 100 acres planted in alfalfa Buford G. Hamilton and Cleo B. Hamilton demanded damages for one-half the value thereof, or $1,934, and for $3,000 for damages to 20 acres by sand thrown thereon by the flood. Hamilton Brothers, Inc., as tenants, demanded damages for one-half the loss of the same alfalfa, or $1,934.

Thomas Fowler as owner of 150 acres of growing corn valued at $8,670 demanded damages for two-thirds thereof, or $5,780; and Troy Lynn as tenant asked for one-third, or $2,890. All plaintiffs and interveners demanded interest and costs.

For its answer to the claims of plaintiffs and interveners defendant —

1. Alleges that the complaints fail to state claims upon which relief can be granted;

2. Denies all charges of negligence; and

3. Says that if plaintiffs have sustained the damages from floods claimed, such floods and damages were caused by the acts of the Henrietta Drainage District in changing the natural drainage of water from their property and in its failure properly to maintain the artificial levees, drains and ditches constructed by the district.

The jury returned a verdict in favor of Hamilton Brothers, Inc., for $773.60; in favor of Buford G. Hamilton and Cleo B. Hamilton for $773.60; in favor of Thomas Fowler for $2,312, and in favor of Troy Lynn for $1,156, for which amounts together with costs judgment was entered.

On appeal the defendant contends that the court erred: 1. In denying its motion for a directed verdict because plaintiffs failed to make a submissible case; 2. In admitting evidence of the flooding of plaintiffs' crops in 1947; and 3. In admitting in evidence plaintiffs' Exhibit 19.

The Henrietta Drainage District lies west of the town of Henrietta and consists of bottom land subject to overflow from Willow Creek and the Missouri river. It is bounded on the south by the embankment of the defendant railway. Willow Creek enters the district at the northwest corner and flows south and southeast. Near the eastern boundary of the district it turns south and passes under the defendant's railroad bridge at the southeast corner of the district.

Willow Creek carries silt from the hills at the north which filled up the natural channel and permitted the growth of weeds, trees and willows. In 1945 and 1946 the district excavated a new channel across the district from west to east a quarter of a mile north of the old channel. The earth excavated to make the new channel was used to construct levees on each side of the ditch for the purpose of confining the water within the channel. This new channel and the flanking levees were constructed on a right of way 200 feet wide, except at the bend about a quarter of a mile upstream north of the bridge where the levee on the north bank ended, at which point the channel was 400 feet wide.

The levee on the north bank of the new channel extends from the northwest corner of the district to high ground at the eastern boundary of the district about a quarter of a mile north or upstream from the bridge, while the levee on the right or south bank extends to the railway embankment immediately west of the bridge at the southeast corner of the district. Along the north side of the railroad embankment the defendant maintains a lateral which connects with Willow Creek by three gated pipes installed by the drainage district and extending through the levee immediately upstream from the point where the levee connects with the railroad embankment. A similar gated pipe through the left bank levee connects a lateral ditch with the creek channel a quarter of a mile upstream from the bridge. All such pipes were equipped with flap gates within the creek so designed that when the water outside the channel was higher than the water in the channel the gates would open and permit the water outside the levee to flow through into the creek; but, if the water in the creek were as high or higher than the water outside the bank or levee the water could not flow through and into the creek.

The plaintiffs' lands involved in this case lie south of the new channel of Willow Creek and north and west of the railroad embankment.

The defendant operated a water treating plant at Henrietta where the water used in its locomotives was treated with soda ash. Once each day the soda ash not taken up by the water was sludged into Willow Creek upstream from the bridge. Plaintiffs testified that this sludge solidified to some extent and caused the silting up of the stream and some filling up of the channel immediately above the bridge.

After the new channel had been completed in December, 1946, it was not kept clean. At a point about a quarter of a mile upstream above defendant's bridge a thick growth of willows and trees choked up the channel and inhibited the free flow of water.

In May, 1949, the defendant had begun work on the construction of a new bridge over Willow Creek. There were two tracks crossing the creek. The old bridge was a trestle resting on piles driven into the bed of the creek. The piling were in rows about a foot apart and the distance between the rows was 13 feet. The rows of piling under the northwesterly track stood at right angles to the creek while those supporting the southerly track crossed the creek diagonally.

On May 20-21, 1949, one and three-eighths inches of rain fell, resulting in damage to 25 acres of the Fowler and Lynn corn. The levee did not break, however, nor did Willow Creek overflow.

On the night of May 30-June 1, another heavy rain fell, and sometime before five a. m. on June 1st the water in Willow Creek breached the south levee of the new or diversion channel of the creek at a point about one mile above defendant's bridge and upstream from the point where the channel was filled with willows and other vegetation. At another point above the willows in the channel and three-quarters of a mile above the bridge, Willow Creek overflowed the south bank or levee. The rain which fell upon plaintiffs' alfalfa and corn combined with the water which escaped from the creek at the two points described caused the damage to the plaintiffs' crops sought to be recovered in this...