Gulf, C. & F. Ry. Co. v. Moseley

• Decision Date: 20 April 1908
• Docket Number: 2,541.
• Citation: 161 F. 72
• Parties: GULF, C. & S.F. RY. CO. v. MOSELEY.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 72

GULF, C. & S.F. RY. CO. v. MOSELEY.

No. 2,541.

United States Court of Appeals, Eighth Circuit.

April 20, 1908

S. T Bledsoe, for plaintiff in error.

A Eddleman and J. F. Sharp, for defendant in error.

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

PHILIPS District Judge.

The defendant in error (hereinafter designated the 'plaintiff') in the United States Court for the Southern District of the Indian Territory recovered judgment against the plaintiff in error (hereinafter designated the 'defendant ') for damages to her land in the sum of $1,980, with interest at 6 per cent. from July 4, 1895, which judgment was affirmed by the Court of Appeals of the Territory, to reverse which this writ of error is prosecuted.

In 1893 the plaintiff, under the homestead law, owned a tract of land of 137 acres, bordering on the east bank of the Canadian river, in Cleveland county, Oklahoma Territory. The defendant railroad company prior to 1893 had constructed its roadbed along the opposite west bank of said river on its right of way. The Canadian river, of varying width, at the point in question was perhaps one-half mile wide under high stage of water. The stream was somewhat treacherous in its flow subject annually to high floods, which rendered its current, when veering to the bank, destructive to adjacent lands. The bank along the plaintiff's land, owing to the sandy soil formation, was quite susceptible to disintegration from the wash of the current; and owing to the low surface of the body of the land this condition existed throughout the tract, so that the caving in of large areas of the land was an apparent inevitable result when the current was sent against the east bank of the river. Prior to 1893 the normal flow of the current was toward and along the west shore line, opposite the plaintiff's land, with the result that it was constantly making inroads on the right of way of the defendant company, endangering its roadbed and tracks, until, as the defendant claims and the testimony tends to establish, it became necessary for the preservation of its roadbed to construct at the point in question a line of powerful dikes, with the view of throwing the current back to its wonted place as at the time of the construction of the road. The effect of these dikes, the plaintiff claims, was to so deflect the natural current of the river as to drive it forcibly against the opposite shore line, undermining and disintegrating the natural barrier of the bank protecting her land.

The petition avers that in September, 1893, about one month after the completion of the dikes, the current of the river so diverted washed away of the plaintiff's land about 5 acres, in 1894 about 10 acres, in 1895 about 75 acres, and in 1897 about 5 acres. This action was originally instituted on the 11th day of December, 1897, covering the damages sustained up to that time. On the 23d day of November, 1899, an amended petition was filed, claiming damages for the destruction of 5 acres of the land in 1898 and for damages to the remaining portion of the land. A demurrer to the petition having been overruled, the defendant answered, pleading, inter alia, the statute of limitations. The trial court denied the applicability of this defense. If in fact and law this plea was good, the discussion of other assignments of error is unnecessary. The statute of the state of Arkansas (section 4478, Mans. Dig. (Ind. T. Ann. St. 1899, Sec. 2945)), applicable to the Indian Territory, declares that an action for trespass upon lands shall be brought within three years after cause of action accrues. As construed by the Supreme Court of Arkansas, the three-year period applies to an action for damages of this character. St. Louis, I.M. & S. Ry. Co. v. Morris, 35 Ark. 612.

The defendant's contention is that the dikes were permanent in construction, and under the allegations of the petition and the proofs the injuries to the plaintiff's freehold were obviously consequential, and therefore the entire damages could have been recovered in one action, the cause for which arose as early as September, 1893, more than four years prior to the institution of suit, which was more than three years after the damage was done in 1894.

The contention of the plaintiff is that the structure did not immediately involve the entire destruction of her estate, or its beneficial use, but the damages were apportionable from time to time, and therefore separate actions might be brought to recover damages for each successive injury as it occurred. That the structure of the dikes was permanent in character, and intended by the defendant to be so, hardly admits of debate. The evidence shows that the piles, at the large end, were from 14 inches to 2 feet in diameter, and were driven down into the earth from 5 to 7 feet, and were about 7 feet apart, with caps of heavy boards along the tops. These rows of dikes were boarded up with planks from 2 to 3 inches in thickness, and were filled in with smaller stones at the bottom, and on the top with stones so large that only three of them could be loaded onto a car, which was run out along the side of the dike, and the stones were lifted in place by derricks.

It may be true, in the abstract, that nothing constructed by the hand of man is indestructible. The razure of time and the process of erosion of the waters may wear away this structure. But in its relation to the practical affairs of human action, with which the law deals, this formidable, substantial work must be regarded as possessing in a high degree the quality of a permanent structure. The petition itself avers:

'That the natural and probable consequence of the erection of said dikes was to change the current and channel of said river, by turning the current over and against the east or left bank of said river and cutting and washing said bank away, and that they were built and maintained by the defendant for this purpose. * * * That the effect of said dikes was to, and they did, change the current of said river, and threw the same over and against the left or east bank of the same, and cut and washed the same away, and destroyed plaintiff's land, and changed the channel of said river, making the same much farther east than it ever was before the wrongful building of said dikes. That after and on account of the said building and maintaining of said dikes, at each successive rise in said river, the current was thrown over and upon plaintiff's land, and washed a portion of the same away, and destroyed it.'

As if to aid this defense, the plaintiff's evidence was full and strong to the point that within the month succeeding the construction of the dikes the effect was to send the current of the river directly across to the east shore, where it began rapidly to eat away the bank, destroying 5 acres of the land, and in the following year 10 acres, and 1895 75 acres more. In the very nature of the situation, this deflection of the current to the east shore was constant-- more destructive at intermittent periods of high water than at others. This characteristic of the river, its history shows, was as certain of manifestation as the coming of the seasons. The quality of the soil composing the ever-receding bank and the lay of the land rendered it so probable that this process of disintegration and work of destruction would proceed, unless arrested by human agency, as to have permitted a tangible estimation of the whole damage, within the admissibility of the law, in a single action as early as September, 1893.

Indeed the plaintiff ought not to be heard to say that this ascertainment was too remote and speculative, for the reason that in this suit the trial court, under the evidence introduced by the plaintiff, permitted her to recover, not only damages for all the land hitherto destroyed by the alleged nuisance within the three years next preceding the institution of suit, but for the prospective damages to the remainder of her land yet...