Chicago, B. & Q.R. Co. v. Board of Sup'rs of Appanoose County, Iowa

• Decision Date: 08 April 1910
• Docket Number: 3,099.
• Parties: CHICAGO, B. & Q.R. CO. v. BOARD OF SUP'RS OF APPANOOSE COUNTY, IOWA, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F. 291

CHICAGO, B. & Q.R. CO. v. BOARD OF SUP'RS OF APPANOOSE COUNTY, IOWA, et al.

No. 3,099.

United States Court of Appeals, Eighth Circuit.

April 8, 1910

On the 4th day of June, 1904, the owners of land situated in the Chariton Valley, Iowa, filed a petition with the defendant board of supervisors, praying the establishment and construction of a ditch to drain that district. The river at this section runs substantially north and south, having a valley about two miles wide. The stream winds along the western bluff in a very crooked course. The Chicago Burlington & Quincy Railroad Company has two branch lines which cross the district in a general east and west direction, and are intersected by the proposed drain, the north line being known as the 'Kansas City Branch,' and the south line as the 'Keokuk & Western Branch.' Each branch has two trestles in the valley, one over the river, and the other over a stream and lowlands about a mile east of the river. The proposed drain passed beneath these eastern trestles. The Chariton Valley has been subject to ruinous floods, sometimes filling the lowlands from bluff to bluff to the depth of several feet. These inundations were not only disastrous to farms, but also caused serious injury to the trestles and grade of the plaintiff's roads. The drainage ditch taps the eastern bank of the river about a mile north of the tracks, and runs in a southerly course without any sharp curves for seven miles, where it again rejoins the river. It was the opinion of the drainage authorities that this ditch would not only double the channel of the river, but that owing to its straight course the water would pass through it rapidly, and thus prevent or quickly relieve the overflows. Upon the filing of the petition and plan for the drain, the county auditor, in obedience to the local statute served notice upon the railroad company to file its claim for any damage which it would suffer from the construction of the improvement. In response to this notice the company presented a petition wherein it claimed damages not only for the value of the land occupied by the drain, but also for the cost of constructing and maintaining new bridges with spans and concrete piers over the ditch. Its claim amounted to $45,000 for each branch. In due time a board of appraisers was appointed to view the course of the drain and estimate the damage to be caused by its construction. This board assessed the plaintiff's damages in the case of one branch line at $82.90 and the other $112.50. These sums seem to have covered simply the damage to the right of way lying below the trestle, and included nothing for damages accruing to the superstructure. The board of supervisors, by resolution approved this appraisement. Thereupon the railroad company, in accordance with the local statute, appealed from the decision to the district court of the county, and, upon the record being filed there, removed the case to the federal court. The action was tried without a jury, pursuant to written stipulation. The court made elaborate findings of fact, among other things that the expense of cutting the trestle for the construction of the drain was, for one branch, $410, and for the other, $488.22, and that the cost of building new bridges over the drain, with spans supported by concrete abutments, would be in each case $17,924, and that the annual cost of maintaining each bridge would be $36, which, capitalized at 5 per cent., would require $720. The railroad company claimed that it should be allowed these sums as damages accruing to it from the construction of the drain. The claim was denied by the trial court, and judgment entered affirming the decision of the board of supervisors. The present writ of error is brought to review that judgment.

H. H. Trimble (Palmer Trimble, on the brief), for plaintiff in error.

Clarence A. Baker, for defendants in error.

Before SANBORN and ADAMS, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge (after stating the facts as above).

An important question of fact at the trial was whether the drain followed a water course at its point of intersection with plaintiff's roads. There are two creeks arising in the eastern bluffs bordering on the valley, and flowing southwesterly, and finally discharging into Chariton river. Both streams have well-defined channels at their upper course, and also in portions of the valley, but at other points their banks disappear and they become lakes or bayous. The northermost stream, known as 'Locust Creek,' enters the valley north of the north line of plaintiff's road, and its waters, together with the surface waters of the eastern part of the valley, pass under the north branch at the eastern trestle above mentioned, and at the point where that branch is intersected by the drain. Between the two branches this stream is joined by another creek similar in character and known as 'Indian Creek,' flowing in from the east. The combined waters of these streams pass under the south branch of the plaintiff's road at the eastern trestle. The findings of the court touching the character of these streams, as at first made, are ambiguous. It appears, however, from the recitation in the court's judgment that these findings were prepared by counsel for the railroad company, and that later additional findings were prepared by counsel for the board of supervisors, and signed by the court for the purpose of modifying the earlier findings. They show upon their face that their main object was to make plain the character of these water courses. The findings all seem to have been signed and filed on the same date-- December 9, 1908. streams is 'a natural water course,' and 'while its waters spread somewhat in passing under said trestle bridge, said creek has well-defined banks both before passing under such trestle bridge and after. ' There is much other language to the same effect.

What constitutes a water course is a matter of local law as to which federal courts should follow the decisions of the state. The Supreme Court of Iowa, in the case of Hull v. Harker, 130 Iowa, 191, 106 N.W. 629, says:

'To constitute a natural water course it is not necessary that the flow of water through it should have been sufficient to wear out a channel or canal having definitely well-marked sides and banks. If the surface water in fact uniformly and habitually flows off over a given course, having reasonable limits as to the width, the line of its flow is, within the meaning of the law applicable to the discharge of surface water, a water course.'

While there is some conflict in the decisions of the courts of the several states on the subject, this, in our judgment, is a sensible view of the term as applied to public drains. To require such ditches to follow the line of streams having well-defined banks, would defeat their principal object. Their purpose is to drain lowlands which are not drained by streams having well-defined banks. Their best course lies along the line of swales and bayous over which surface and overflow water passes, but does not move with sufficient rapidity to render the land fit for agriculture. The finding of the trial court is amply supported by the evidence, and brings these streams well within the meaning of a water course, as defined by the highest court of the state.

Such being the case our duty is plain. The Supreme Court of Iowa, in Mason City & Ft. Dodge R.R. Co. v. Board of Supervisors, 121 N.W. 39, and Chicago & N.W. Ry. Co. v. Drainage Dist. No. 5, 121 N.W. 193, had before it the identical question which is here presented, and it was there ruled that a railroad company is not entitled to recover the expense of building a new bridge over a public drainage ditch, but that its damages are confined to the value of the easement across its right of way. These cases followed the decision of the Supreme Court of the United States in Burlington & Quincy R.R. Co. v. Drainage Commissioners, 200 U.S. 561, 26 Sup.Ct. 341, 50 L.Ed. 596, where a similar rule was enforced. The trial court was clearly right in following these decisions as a binding declaration of law.

We do not, however, in the present case, think that plaintiff's measure of damages would be different if there was no water course at the point where the ditch intersects its lines. The fact of such water course is brought prominently forward in the above decisions of the Supreme Court of Iowa, and in the case of Chicago, Burlington & Quincy R.R. Co. v. People, 200 U.S. 561, 26 Sup.Ct. 341, 50 L.Ed. 596.

Nevertheless, we do not think this feature a controlling factor in those decisions. The duty of the railroad to conform its roadbed to the requirement of such public easements as highways and ditches is an incident of its right to construct and maintain its road. The whole subject has been clearly defined in the long line of cases in which railroads have been charged with the expense not only of building fences along their right of way, and cattle guards, but also with the expense of constructing crossings over new highways, both public and private, and also with the expense of constructing bridges and viaducts so as to obviate crossings at grade whenever the public welfare required such a change. It has been uniformly contended by railroads that such expenses constituted a taking of their property for public use without just compensation, a deprivation of their property without due process of law, and a denial to them of the equal protection of the law. While there has been some conflict in the decisions, the overwhelming weight of authority at the present time is that such requirements are just, and are not subject to either of the constitutional objections mentioned.

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