Atchison, T. & S.F. Ry. Co. v. Hadley
| Decision Date | 05 June 1934 |
| Docket Number | 21903. |
| Citation | 35 P.2d 463,168 Okla. 588,1934 OK 336 |
| Parties | ATCHISON, T. & S. F. RY. CO. v. HADLEY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 11, 1934.
Syllabus by the Court.
1. A riparian proprietor may lawfully erect and maintain any work or embankment to protect his land against overflow by any change of the natural state of the river and to prevent the old course of the river from being altered; but such a riparian proprietor, though doing so for his convenience benefit, and protection, has no right to build anything which in times of flood will throw waters on the lands of another such proprietor so as to overflow and injure him.
2. An action against a railroad company for damages resulting from an overflow caused by the construction of works and bringing about a deflection of waters from their natural course and channel and increasing their velocity over and along another's lands whereby the same are washed away, is not barred by limitation because such works have been constructed more than two years prior to the injury, but the time in which such action may be brought dates from the time the injuries are received and damages sustained.
3. Under the facts in the instant case, as disclosed in the opinion, held, in an action to recover damages for the wrongful deflection of flood waters against the premises of another, the statute of limitations began to run only from the time the injury occurred.
Appeal from District Court, Oklahoma County; E. L. Mitchell, Judge.
Action by John C. Hadley against the Atchison, Topeka & Santa Fé Railway Company. From a judgment in favor of the plaintiff the defendant appeals.
Affirmed.
Rainey Flynn, Green & Anderson, of Oklahoma City, for plaintiff in error.
Lillard & Wheeling, of Oklahoma City, for defendant in error.
Plaintiff filed his action against the defendant company September 25 1929, and in his petition substantially alleged he was the owner of thirty-six acres of land on the north bank of the South Canadian river where defendant's railway crosses on a bridge immediately west of said land, and that defendant had erected and maintained along the south bank and west of the bridge a dike or embankment which is permanent in character, thereby changing the channel and flow of water out of their natural course and direction, over and across plaintiff's land, which was done by the defendant negligently, carelessly, and unlawfully and with full knowledge of the subsequent consequences; that, as a result of said deflection of the natural flow over his land, the same has been washed away to the extent of fourteen acres since August 20, 1929; that the land was worth $200 per acre, and he has been damaged $2,800, for which he prays judgment.
The defendant answered, denying generally the allegations of the petition, and alleging that its railway adjacent to plaintiff's land was built in 1895; that some time in 1904 or 1905 it constructed a dike of rock and other materials on the south bank of the river in order to keep it within its banks; that in 1903 it overflowed its banks and the south bank at a point where a stone dike was afterwards built; that such dike has been maintained there for many years prior to and at the time of the overflows alleged and since that time; that it does not obstruct the natural flow of the stream and was constructed only to control the same in times of flood and prevent it from making a new channel and leaving defendant's bridge upon dry land; that the dike had been constructed in 1904 before plaintiff acquired his lands in 1928; that he was aware of the conditions existing when he bought the land; and that his action is barred by the statute of limitations.
Defendant further alleges that the bed of the river is made up of quicksand and silt and is dry during most of the year, that the same is wide and without any channel or banks, is migratory by nature, and frequently changes its course without any apparent reason or cause, and that, if plaintiff suffered any damages, they were caused by the nature of the soil and stream and conditions over which the defendant had no control.
For his reply, plaintiff admits he acquired the lands in May, 1928, and denies that his cause of action is barred by the statute of limitations and all allegations of new matter in the answer.
A jury was waived, and the trial was to the court. Judgment was in favor of the plaintiff for the destruction of ten acres of land worth $150 per acre, a total of $1,500. Motion for new trial was overruled, the defendant appealed, and the case is now before this court for review.
From the evidence it appears that the plaintiff is the legal owner of the land described in his petition; that at the time he acquired it in August, 1929, it contained approximately thirty-six acres, about ten acres thereof have been eroded away by the waters of the river flowing against it, and that the value of what was washed away is $150 per acre or $1,500 in all; that near the west line of his property defendant's railway crosses the river, and on the south bank and just west of the bridge it, in 1896, erected a certain dike or embankment to protect the south approach; that in 1904 high waters washed a part of it away, and in 1906 the defendant rebuilt the dike or embankment and extended it some 3,700 feet southwesterly along the south bank west of the bridge; that prior to the erection of the dike or embankment the waters flowing in the river at times of flood had a natural tendency to overflow and erode the south bank at the place where the bridge crosses the river, and that, since it has been erected and maintained and the trestle of the south approach has been removed and replaced by a solid earth fill, the waters of the river have no longer eroded the south bank at that place; that after the erection of the dike or embankment the waters were deflected in times of flood across and against the north bank at a point some 3,000 feet west of the north approach to the bridge, and that thereupon the defendant erected a series of jetties extending from the west side of said approach along the north bank toward the west for some 3,600 feet; that, since the plaintiff acquired the land, the waters in times of flood have been precipitated against said dike or embankment along the south bank and are by it deflected back across the bed of the river in a northeasterly direction against the plaintiff's land, and, by reason thereof and of said dike or embankment, the excessive waters of the river were thrown against plaintiff's land and washed it away; that such damage is of recent origin and has occurred within the time the plaintiff owned said property.
Upon the motion of the defendant for judgment dismissing the action on the grounds that it is barred by the statute of limitations, the trial court found that it is not barred for the reason that, until the plaintiff actually suffered damages by reason of the construction of said improvements by the defendant, he had no cause of action against the defendant and that the statutory period for bringing the action had not expired. The motion was overruled, and the court entered judgment for the plaintiff.
All the assignments of error may be discussed and determined under two questions which will be applicable under the facts of this case, viz.: (1) Has the plaintiff a cause of action against the defendant under the facts of the case? (2) Did the trial court err in holding that the plaintiff's cause of action was not barred by the statute of limitations? If the contentions of the defendant as to either of these matters prevail, the judgment must be set aside; otherwise it must be affirmed.
1. It is contended by the defendant that the dike or embankment was a permanent structure, and that any damages to the land, present and prospective, were recoverable in a single action, that the right to bring such action accrued when the dike was completed, and plaintiff's action is therefore barred by the statute of limitations; for the dike was first built in 1896, and was partially reconstructed in 1906 after a flood in 1903, and plaintiff did not acquire the land until August, 1929, and knew it was in place when he bought the land. The dike was built on the south bank of the river, and the land was on the north bank thereof. Under the Oklahoma statute (C. O. S. 1921, § 185, third subdivision; O. S. 1931, § 101, third subdivision) such an action must be brought within two years after it accrues or it is barred.
The evidence shows that, by reason of the embankment on the south side of the river and the jetties on the north side west of the bridge, the channel of the river has been narrowed to the width of the length of the bridge creating something of a "bottle-neck," and that the waters flowing from the west first strike the embankment, are by it deflected toward the north across to the jetties, and then forced eastward under the bridge and the north end thereof against the plaintiff's land, and, after emerging from this "bottleneck," the channel greatly widens out toward both the north and the south eastward from the bridge. The evidence further shows that little, if any, erosion or washing away of the land occurred until after the plaintiff acquired the premises.
In this case the court is dealing not with the usual and ordinary conditions prevailing in the waters of a river, but with the unusual and extraordinary emergencies created by high waters at extreme flood under which the wide bed of a sandy stream with only a narrow thread of sluggish water is enlarged and expanded into a raging torrent almost a mile wide and many feet deep, filled with silt and sand, with swift currents leaping from bank to bank and moving onward with...
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