Brantley v. Tremont & Gulf Ry. Co.

• Decision Date: 02 July 1954
• Docket Number: No. 40471,40471
• Citation: 226 La. 176,75 So.2d 236
• Parties: Jesse A. BRANTLEY v. TREMONT & GULF RAILWAY CO.
• Court: Louisiana Supreme Court

Page 236

75 So.2d 236

226 La. 176

Jesse A. BRANTLEY v. TREMONT & GULF RAILWAY CO.

No. 40471.

Supreme Court of Louisiana.

July 2, 1954.

Rehearing Denied Oct. 5, 1954.

Theus, Grisham, Davis & Leigh, Monroe, for defendant-appellant.

J. B. Dawkins, Monroe, for plaintiff-appellee.

HAMITER, Justice.

Jesse A. Brantley, who is engaged in the business of operating a boat dock and of selling bait for sport fishing, instituted this suit to recover damages of $8,000 from the Tremont & Gulf Railway Co. He complains that on or about June 21, 1950 the defendant wantonly cut the dam or levee adjoining a pond of water, located in Ward 8 of Ouachita Parish and possessed by him under a lease from the owner Sandel Berry, releasing therefrom and causing the loss of more than 400,000 minnows or shiners (a small fish used for bait in fishing) which belonged to him and had a valuation of two cents each.

After a trial on the merits of the case the district court awarded plaintiff the sum of $2,000. Defendant appealed from the judgment.

Answering the appeal, plaintiff asks that the award be increased to $4,000.

On a right of way granted in 1927 by Sandel Berry across his land situated in Ouachita Parish, as shown by the record, the Brown Paper Mill Company, Inc. constructed, and it maintained for a number of years, a railroad track running approximately north and south. The natural drainage of water over the land was from west to east; and at the fill or embankment, on which the track was situated and which crossed the drainage, the water passed, initially under a small wood bridge and, later, through a substituted 36 inch concrete culvert which remained only a few years. Following the removal of this culvert the water, after reaching the embankment, drained north along the track a distance of several hundred feet and then east beneath a trestle.

In the fall of 1947, subsequent to the acquisition of the mentioned railroad track by this defendant from Brown Paper Mill Company, Inc., Sandel Berry completed on his property a pond of water having an area of approximately four acres. It was created principally by constructing a levee or dam some 300 feet long across the above described natural drain. The structure was placed west of the railroad right of way, and it lay therefrom a distance of approximately 25 feet at the south end and about 160 feet at the north end. Following the completion of this levee the drainage was around the south end thereof and then north, paralleling defendant's track, to the trestle.

On May 24, 1950 plaintiff obtained from Berry and recorded a written lease on the pond. It granted to him ingress and egress over the lessor's property and was for a term of one year. Two days thereafter he commenced stocking this pond with thousands of minnows which were to be used in connection with his bait selling operations.

Meanwhile, the drainage of water around the south end of the dam caused some erosion to the embankment supporting the railroad track. With the view of having this condition remedied defendant's vice-president and general manager, along with its attorney, met Berry at the site on October 5, 1949 and sought to persuade him to perform at his expense such work as was necessary to divert the water from the south end of the levee and cause it to drain around the north end thereof. When the property owner refused, the mentioned official said '* * * all right, we can't permit this condition to continue to exist, we have got to do something about it, and if you are not going to do anything about it then we are willing to have it fixed, if it is all right with you.' To this Berry offered no objection; in fact, he consented to defendant's obtaining dirt from his property for a suggested extension by it of the south end of the dam. Five days later defendant, with fresh dirt and by the use of a rented bulldozer which operated ten hours, provided such extension.

About June 18, 1950 defendant undertook to make repairs on such south extension, using therefor hand labor and wheelbarrows and more fresh dirt, it having experienced considerable erosion. Before the work was completed, however, a series of heavy rains (rather unusual for that season of the year) occurred, they having begun about midnight of June 20, 1950 and having endured for approximately 24 hours. The precipitation for this period, recorded at an official weather station some eight or ten miles away, totaled 6.68 inches.

On the morning of June 21, 1950 some of the employees of defendant went to the scene and sought to continue the repair work which had become more burdensome because of the rains. But their efforts were not too successful. For this reason, and in order to prevent further damage to the levee's extended south end and with the ultimate view of protecting the railroad embankment in that immediate area, defendant's track supervisor proceeded to a point on the dam near its north end, and there, without the knowledge of the owner Berry or plaintiff, he cut a sizable opening which permitted the greater part of the pond's water to escape rapidly and to flow to and through a ditch that existed beneath the railroad trestle and coursed...