L. & N. Railroad Company v. Vandiver
| Decision Date | 15 May 1931 |
| Citation | 238 Ky. 846 |
| Parties | Louisville & Nashville Railroad Company v. Vandiver. |
| Court | United States State Supreme Court — District of Kentucky |
1. Waters and Water Courses. — Whether damage to land by diversion of river was result of unusual rainfall held for jury.
2. Trial. — Instruction held not erroneous as invading jury's province to determine whether rocks forced from creek diverted river.
The instruction was that, if jury believed from evidence that damage was caused by unusual rainfall causing freshet in creek, which forced rocks therefrom, thus forming barrier and diverting water of river, law was for plaintiff, if jury also believed that rocks were negligently placed in creek by defendant.
3. Trial. — Refusal of instruction to apportion damages to plaintiff's land by diversion of river from natural causes and defendant's negligence held not error, in view of court's instruction.
The court's instruction limited recovery to damages resulting from negligent placing of rock in creek by defendant.
4. Evidence. — County assessor's book, showing valuation of land, damaged by diversion of river, for taxation, held inadmissible, in absence of showing that owner himself listed property.
Appeal from Campbell Circuit Court.
ASHBY M. WARREN, GEORGE J. HEROLD and MATT HEROLD for appellant.
HUBBARD SCHWARTZ and H.O. WILLIAMS for appellee.
Affirming.
On May 6, 1922, Wright Vandiver sued the Louisville & Nashville Railroad Company for damages alleged to have been done to his land by the diversion of the waters of the Licking river. The case finally came on for trial on June 12, 1930, and resulted in a judgment against the railroad company for $1,000, and it appeals.
Rivers never pursue a straight course, but meander about; still the general course of Licking river is from the south to the north, and we shall speak of it in this opinion as so flowing. It is the dividing line between Kenton county and Campbell county. Grassy creek also meanders, but we will speak of it as flowing from west to east, and it empties into the Licking river at or near the dividing line between Kenton county and Campbell county. The village of Demossville is situated on the Pendleton county side of this creek near its mouth. The Louisville & Nashville Railroad Company has a line of railroad running along the west bank of Licking river and crossing Grassy creek at Demossville near the mouth of the creek. To cross this creek the railroad company built a bridge with piers upon the south side and the north side of this creek. The pier upon the south side of the creek gave trouble. It was inclined to sink, and for years the railroad company, with commendable care, has kept it under almost daily observation. About the year 1909 the railroad company placed in Grassy creek around and about the pier on the south side thereof several carloads of very large stones of such size it would take several horses to move one of them.
Some time about the years 1917 or 1918, during a very low stage of the Licking river, there occurred a heavy rainfall, upon the watershed of Grassy creek, so that, in view of the stage of the river and the high tide in Grassy creek, the water carried these stones away from their location around this pier and deposited them on a sand bar in the Licking river just below the mouth of Grassy creek.
There had been a sand bar at this place for years, it was usually composed of silt, sand, and small stones brought down by the creek during high tides of it, and these sand bars thus composed were usually cut out and carried away by the next high tide in the Licking river, but, after these large stones were carried onto this sand bar, the high tides of Licking river were unable then to cut out and carry away the bar re-enforced as it was by these enormous stones.
The result was this bar began to grow both in size and in height. Very accurate soundings, measurements and levels of Licking river were made by the United States government about the year 1900, and, from a comparison made with those measurements, with levels and surveys of the premises as now, taken from the old bench marks, it has been found that the height of this sand bar has been raised six feet or more and the bar has been extended so that it is now about two acres in extent, and the stream or flow of the Licking...
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