Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Mumford
| Decision Date | 24 October 1935 |
| Docket Number | 25,356 |
| Citation | 197 N.E. 826,208 Ind. 655 |
| Parties | Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al. v. Mumford et al |
| Court | Indiana Supreme Court |
From Gibson Circuit Court; Benjamin Carr, Special Judge.
Proceedings by Thomas Mumford and others for the establishment of a levee, wherein the Cleveland, Cincinnati, Chicago and St Louis Railway Company and other railroads and affected landowners remonstrated. From a judgment establishing the levee, the remonstrators appealed.
Reversed.
John D Welman, L. E. Jeffries, S. R. Prince, Frank L. Littleton Edward C. Craig, Robinson & Stilwell, Thomas Duncan, P. J. Kolb, Charles A. Steele, Roberta S. Watts, and Harvey Harmon, for appellants.
Henry Kister and Morton C. Embree, for appellees.
This is an appeal from a judgment establishing a levee in Gibson and Posey counties, under sections 9573 to 9587, inclusive, Burns 1926. The proceedings involve about 60,000 acres of land affected by the overflow of the Wabash, White, and Patoka rivers. The appellant railroads maintain tracks constructed on embankments and bridges across the Wabash river in the affected area. The other appellants are affected landowners.
The original petition was referred to drainage commissioners, who filed a preliminary report conforming to the statute, against which no remonstrances were filed. It was referred back to the commissioners, who, after an extension of time, filed what is denominated in the briefs as the "first final report." To this final report the appellants and many others filed remonstrances, alleging as a ground therefor, among other things, that the location of the work is not such as will secure the best results. Thereupon the petitioners filed the following written motion:
"The petitioners in the above-entitled cause respectfully move the court to set aside the report of the commissioners in said cause and refer the matter again to said commissioners for a new report for the purpose of changing the estimate of cost contained in said report, making changes in the assessments of benefits and damages therein set forth, changing the specifications for said work and making such other changes therein as the commissioners shall deem advisable, with a view to the elimination of the diversion channel therein specified if, in the opinion of such commissioners, the same may be eliminated; and the petitioners now confess that the method of the work as set out in said final report is not such as will secure the best results, as is charged in the third specification of the remonstrance of John M. Blood, filed in this proceeding on the 25th day of August, 1921."
Over the objection of appellants, the court sustained the motion to set aside the report of the commissioners, and referred the same again to the commissioners for a new report. This action was taken without a hearing, of which appellants complain, asserting that they had a right to a hearing upon their other statutory grounds of remonstrance. The statute provides that, if upon hearing it be decided that the first or second named causes of remonstrance be true, the court may set aside the report, and refer the matter again to the commissioners for a new report. It is true that there was no hearing, but all of the appellants who are complaining had asserted that the improvement as reported was not such as would secure the best results, and the petitioners had admitted as much to be true. This having been conceded by the parties in interest, it was not necessary that the court conduct a hearing to determine the fact, and, since the matter was to be referred back to the commissioners for a new report, no good purpose would have been accomplished in hearing the remonstrators upon their other grounds of remonstrance, since they might be, and probably would be, affected differently by the work as proposed in a new report. We find no error in the court's action in this respect. No action seems to have been taken by the court upon that part of the motion which asks that the report be referred back for the purpose of changing the estimate of cost, making changes in the assessment of benefits and damages, and changing the specifications.
Thereafter what is denominated the "new final report" was filed, proposing a different method of constructing the work and estimating the cost at less than $ 1,200,000, as against $ 3,500,000 under the first report. To this final report the appellants all filed remonstrances containing substantially all of the statutory grounds of remonstrance.
The cause was submitted and tried, the trial occupying more than 100 days. Thereafter 839 special findings of fact and 151 conclusions of law were filed, to each of which at least some of the appellants excepted. There was judgment to the effect that the rights of way of all of the appellant railroads were benefited in amounts ranging from $ 52,500 to $ 77,500, and that those appellants were not damaged to any extent whatever. The appellants' several motions for a new trial were overruled.
Appellants contend that the court had no jurisdiction to order the construction of the improvement in question for the reason that "the Wabash river at, in and near the proposed levee district is a navigable water of the United States and none can build any bridge across the river or place any obstruction of any kind or nature in the bed of the river without an affirmative act of Congress of the United States." No act of Congress was shown to have been procured. A federal statute provides:
"That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the chief of engineers and by the secretary of war: Provided, that such structures may be built under authority of the legislature of a state across rivers and other waterways the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the chief of engineers and by the secretary of war before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the chief of engineers and by the secretary of war, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the chief of engineers and of the secretary of war." Vol. 30, U.S. Stat. at Large, ch. 425, p. 1151, § 9.
"That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the secretary of war; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the chief of engineers and authorized by the secretary of war prior to beginning the same." Vol. 30, U.S. Stat. at large, ch. 425, p. 1151, § 10.
Appellants contend that the Wabash river extends to the highest floodwater boundaries in the valley; that all of the valley which is covered by water in times of flood is part of the navigable stream, and that therefore, before any levee or other obstruction can be built in any part of the valley which is submerged in times of flood or high water, authority of Congress must be procured. Appellees, on the contrary, contend that the natural banks of the river are the limits of the navigable stream, and that the valley into which it occasionally overflows is not part of the stream, and that levees, dikes, and other structures may be built therein without authority of Congress.
It is well known that the Wabash and other rivers of Indiana have at certain times overflowed their banks and inundated many miles of farm land and parts of cities and towns. It is inconceivable that the federal statutes above referred to were intended to vest in Congress jurisdiction to determine whether or not structures which would tend to impair the flow of water might be constructed upon any of the land which was inundated by the floods of 1913. Such a construction would preclude the erection of homes, business buildings, and even public buildings, in many cities, upon land that no one has ever dreamedof considering part of a river bed. This is clearly beyond the obvious purposes of the legislation.
In Cubbins v. Mississippi River Commission (1916), 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041, the appellant questioned the right of the public to construct levees outside the natural and ordinary channel of the river but within the valley which was overflowed by the waters...
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