Gulf, C. & S. F. Ry. Co. v. Clark

• Decision Date: 09 April 1900
• Docket Number: 1,294.
• Citation: 101 F. 678
• Parties: GULF, C. & S.F. RY. CO. v. CLARK.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 678

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

No. 1,294.

United States Court of Appeals, Eighth Circuit.

April 9, 1900

W. A Ledbetter, S. T. Bledsoe, and J. W. Terry, for plaintiff in error.

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

Before CALDWELL and SANBORN, Circuit Judges, and ROGERS, District Judge.

SANBORN Circuit Judge.

This was an action by H. H. Clark, the defendant in error, against the Gulf, Colorado & Santa Fe Railway Company, the plaintiff in error, to recover damages for diverting the current of the Canadian river in the Indian Territory, so that it washed away 90 acres of the land of the defendant in error which was located on the east bank of that river. The railway company denied that it had delivered the channel of the river to the injury of the defendant in error, and upon a trial of the issues a verdict was rendered against it, which has been affirmed by the court of appeals in the Indian Territory. The evidence tends to show that the defendant in error was, in 1894 and 1895, in possession of the 90 acres of land which was washed away, as a homesteader under section 2290 of the Revised Statutes of the United States; that he held a receiver's receipt for it; that in 1870 the current of the Canadian river at this point ran some distance east of the channel which it occupied in 1890; that during this period between 1870 and 1890 the railroad company has constructed an embankment, and placed its railroad upon the solid land, some distance west of the westerly bank of the Canadian river; that the river gradually washed away the westerly bank until it encroached upon and swept away some portion of the railroad embankment; that in 1890 or 1891 the railway company constructed dikes, on what was originally solid land some distance back from the westerly bank of the river, for the purpose of restoring the current of the river to its original channel; and that these dikes encroached upon the channel of the river as it actually was at the time they were constructed, but did not encroach upon or extend into the channel of the river as it was originally located in 1870, before the river encroached upon its westerly bank. In 1894 and 1895 this river, during a period of high water, washed out about 90 acres of the land of the defendant in error. The testimony was contradictory upon the question whether or not the removal of this land was due to the construction of the dikes.

The right of the defendant in error to recover at all, and his right to recover all the damages which resulted to the land, are challenged by the plaintiff in error on the ground that he had no title to the land, except his possession and his receiver's receipt as a homesteader. But the receiver's receipt of one in possession claiming land under it in accordance with the provisions of section 2290 of the Revised Statutes of the United States constitutes ample title, as against a wrongdoer who does not connect himself with any claim or interest in the land, to warrant a recovery from him of all the damages which he causes to the property. Wisconsin Cent. R. Co. v. Price Co., 133 U.S. 496, 10 Sup.Ct. 341, 33 L.Ed. 687; Carroll v. Safford, 3 How. 441, 11 L.Ed. 671; Witherspoon v. Duncan, 4 Wall. 210, 18 L.Ed. 839; Railroad Co. v. Lewis, 7 U.S.App. 254, 2 C.C.A. 446, 51 F. 658; Railway Co. v. Johnson, 10 U.S.App. 629, 637, 4 C.C.A. 447, 452, 54 F. 474, 479; Wilson v. Owens (Ind. T.) 38 S.W. 976; Mansf. Dig. Ark. Sec. 2628; Brummett v. Pearle, 36 Ark. 471; Hill v. Plunkett, 41 Ark. 465.

It is assigned as error that the trial court erred in refusing to instruct the jury, at the request of the railway company that the company had no right to change the original current of the river from where it was located before the river encroached upon and washed away its roadbed, but that it had the right, after the river had encroached and washed away the roadbed in the manner described in the testimony, to restrain the current of the river to the position it was in before the defendant's roadbed was washed away, and that if the jury found, from the evidence, that the company did nothing more than to restrain the current of the river to its original position, then they should find for the company; and that, on the other...