Brown v. Chicago, B. & Q.R. Co.

• Decision Date: 16 April 1912
• Docket Number: 26.
• Citation: 195 F. 1007
• Parties: BROWN et al. v. CHICAGO, B. & Q.R. CO.
• Court: U.S. District Court — District of Nebraska

195 F. 1007

BROWN et al. v. CHICAGO, B. & Q.R. CO.

No. 26.

United States District Court, D. Nebraska, Lincoln Division.

April 16, 1912

Charles O. Whedon, of Lincoln, Neb., for plaintiffs.

Byron Clark, of Omaha, Neb., for defendant.

THOMAS C. MUNGER, District Judge.

These cases were consolidated for the purposes of trial, and a verdict for the defendant was directed at the conclusion of the evidence. The actions were brought for the loss of crops and the erosion and silting of land, alleged to have resulted from the defendant's negligence in causing the waters of a stream to overflow plaintiffs' lands. Oak creek is a natural stream, arising in several branches about 22 miles above the place where the plaintiffs' injuries occurred. The creek and its tributary branches drain a watershed of about 200 square miles. The upper portion of this watershed of about 200 square miles. The narrows as it approaches the scene of these actions, until it is about 2 or 3 miles wide, and the valley itself, in which water may run even at high flood stage, narrows to less than a mile. In this valley, Oak creek winds in a crooked course, being ordinarily a stream of a few feet in depth and of about 6 to 10 feet in width. Below the scene of the injury the valley widens somewhat, being joined by another stream of less size entering from the west.

The defendant maintains a railway built across the valley of Oak creek, crossing the stream at a station called Woodlawn. The railway across the valley is laid upon an embankment, and this embankment is broken by two bridges, one a pile bridge over a draw about three-fourths of a mile east of Woodlawn and the other a steel bridge laid across Oak creek. About 200 feet above the steel railway bridge is a dam in the creek adjacent to a mill. In the years alleged in the petitions and following heavy rains over the Oak creek watershed, the water filled the channel of the creek, and also covered large portions of the plaintiffs' lands, injuring the crops thereon.

Contour maps offered in evidence show that, when the water overflows the banks of Oak creek at points above the railway embankment and bridge, it first covers the land (except a few narrow ridges on each side of the creek) just north of the embankment, and for a distance about three-fourths of a mile northward. If it were not for the embankment, the water would also cover the space south of the embankment, and it is usually covered at the same time, by reason of the overflow from the stream south of the embankment. When the water north of the embankment rises approximately another foot, it covers the ridges lying on both sides of the creek, and also overflows a large portion of the west half of section 29 lying to the north of the land previously overflowed. A rise of another foot covers a less amount adjacent to the portions before covered. In the floods complained of these portions of land were all submerged. The water, when it overflows the valley to the east, finds a natural outlet through a well-defined draw, which runs under the pile bridge mentioned, and thence flows across the lands of the plaintiff Schweizer in a southwesterly direction, to again join Oak creek.

The specific charges made by the plaintiffs' petitions allege that the defendant about 1906 removed a previously existing pile bridge, which had a waterway 120 feet wide, and substituted a bridge resting upon stone abutments, which reduced the width of the waterway to 65 feet, because of the filling in of the space outside of the abutments, and that the solid steel girder which constitutes the side of the bridge also obstructed the water's flow, when the stream reached to that height. The charge made in the petition is as follows: 'Some time prior to the year 1906 the defendants removed said bridge theretofore constructed and extending across said Oak creek and resting upon said piling driven into the ground, and in lieu and in place of said bridge so resting upon piling the defendants placed another bridge, each end of which rested upon stone or concrete abutments. In the construction of said last-mentioned bridge the sides of the bridge were made of solid iron about 65 or 70 feet in length and about 6 feet in height from the bottom where the ends rested upon the stone abutments to the top of the sides of said bridge, and in the construction of said last-mentioned bridge the said defendants filled up the waterway theretofore existing, which was about 120 feet in length, for the distance of about 55 feet, thereby reducing the waterway along which the water flowed in said Oak creek and passed beneath said bridge to the distance of about 65 feet, and thereby wrongfully and unlawfully obstructed the flow of water in said stream at said bridge by means of the embankments at the ends thereof, so that ever since said last-mentioned bridge was constructed across said stream the flow of water in said stream in times of high water has been obstructed at and by said bridge, and by means of said bridge and embankments the water flowing along said stream, and which but for said embankments would have flowed along said stream and away from the lands occupied by the plaintiff, as hereinafter mentioned, was caused to flow back and over and upon the lands and crops of the plaintiff, as hereinafter described. * * * The water flowing down said Oak creek flowed down to the said bridge hereinbefore mentioned, which was located at or near said station of Woodlawn, and, owing to the waterway theretofore existing being filled up, the water was not able to escape along the natural course of said channel; but being obstructed in its flow by said embankments and bridge, so constructed by the defendants across said Oak creek, and owing to the fact that said defendants had obstructed the said waterway beneath said track at the crossing of said creek by filling up the previously existing waterway, the water flowed back, over and upon the growing crops of the plaintiff, * * * and that said destruction of the plaintiff's crops was solely due and owing to the action of the defendants in filling up the natural water course along and between which the water of said Oak creek flowed, and in putting in an embankment in lieu of the open space provided for the flow of waters by said bridge theretofore constructed upon the piling, and in causing said waters to overflow said crops.'

It is plain that the only obstruction complained of in plaintiffs' petitions is that, of the 120 feet of waterway previously existing, 55 feet in width was closed by the abutments of the new bridge, and by the filling in of the embankments back of them, and that the girder of the steel bridge added a further obstruction. No complaint is made of the long railway grade or embankment running three-fourths of a mile east of the bridge to the pile bridge, and west of the steel bridge along the valley; but, although the grade had existed for more than a score of years, the petition...