Nashville, C. & St. L. Ry. v. Middle Fork Obion Drainage Dist. No. 6, Weakley County

• Citation: 261 S.W. 975,149 Tenn. 490
• Parties: NASHVILLE, C. & ST. L. RY. v. MIDDLE FORK OBION DRAINAGE DIST. NO. 6, WEAKLEY COUNTY.
• Decision Date: 18 January 1924
• Court: Supreme Court of Tennessee

261 S.W. 975

149 Tenn. 490

NASHVILLE, C. & ST. L. RY. v. MIDDLE FORK OBION DRAINAGE DIST. NO. 6, WEAKLEY COUNTY.

Supreme Court of Tennessee.

January 18, 1924

Certiorari to Court of Civil Appeals.

Action by the Nashville, Chattanooga & St. Louis Railway against the Middle Fork Obion Drainage District No. 6, Weakley County. Judgment in damages less than prayed for was reversed by Court of Civil Appeals on plaintiff's appeal, and case remanded for new trial, and both parties bring certiorari. Judgment of Court of Civil Appeals reversed, and judgment of circuit court affirmed.

Jones & Jones, of Dresden, and H. H. Barr, of Nashville, for plaintiff.

R. E Maiden, of Dresden, for defendant.

GREEN C.J.

The defendant in error, the drainage district, was organized under chapter 185 of the Acts of 1909 for the reclamation of certain wet and swamp lands in Weakley county. The plaintiff in error is a railroad corporation, organized under the laws of Tennessee, one of whose lines crosses the territory of said drainage district.

The drainage district has been duly projected under the act of 1909, and a right of way for the main canal designated, 200 feet wide, crossing the right of way of the railway company. The canal at the point of intersection with the railway company's right of way follows and includes the channel of the middle fork of Obion river.

At present the railroad crosses the river on a substantial bridge, resting on concrete piers about 15 feet apart; these piers resting in turn on cedar piles. The structure is well built and enduring. The specifications for the canal at this point call for a depth of 10 feet and a width of 20 feet at the base and 30 feet at the surface. This makes a considerable change in the present bed of the stream, and will necessitate a reconstruction of the bridge.

After the drainage district was established, and the engineer's report showing the route of the canal was filed, the railway company, proceeding under the statute, made some exceptions to the proposed route and procured a change thereof so as to have the canal cross the railroad as above indicated. The railway company then filed its claim for damages. Viewers were appointed by the court and assessed the damages of the railway company at $3,000, which report, over exceptions, was confirmed.

The railway company appealed to the circuit court, and the whole matter was there heard de novo before the court and a jury. The jury returned a verdict in favor of the railway company for $20 actual damages and for $2,000 incidental damages. Both sides moved for a new trial. These motions were both overruled. The railway company alone perfected an appeal in error to the Court of Civil Appeals. That court reversed the judgment of the trial court and remanded the case for a new trial. The railway company and the drainage district have both filed petitions for certiorari to review the action of the Court of Civil Appeals, which petitions have been granted, and the case has been argued in this court.

The whole controversy is over the measure of damages to which the railway company is entitled.

The right of way sought by the drainage district is 200 feet wide. The right of way of the railway company is 100 feet wide. The overlap will therefore be 100 feet by 200 feet. The changes to be made in the bed of the river will require the temporary removal of the railway company's bridge and the permanent removal of certain piers supporting it, and the foundation supporting those piers. The new channel is to be 30 feet wide at the surface, and there is evidence tending to show that the soil is sandy and loamy, and that the current in the new channel will be swift. To guard against erosion therefore, the new channel will have to be crossed by a bridge with a 50-foot span. A span of that length requires steel construction, and the new bridge will cost upwards of $10,000.

The trial judge instructed the jury that the drainage district did not seek to take the railway company's bridge, and that damages should not be allowed for it; that the drainage district was only seeking to take the railway company's easement, excluding the bridge, in a strip of land 100 feet by 200 feet, and that they should look to the evidence and determine the value of that part of the easement to the extent it was appropriated. He further instructed the jury as to incidental damages, but told them that the cost of building a new bridge was not the measure of incidental damages, but that the incidental damages were the damages resulting to the railway company's right of way and other property from the taking of the right of way and passing its canal boat through the right of way by the drainage district.

The Court of Civil Appeals approved the instruction as to actual damages, but seemed to be of opinion that the cost of the new bridge should be allowed as incidental damages; such damages however, to be diminished by the enhanced value of the railway company's property at this point consequent upon the construction of the new bridge.

The railway company, by apt practice in the courts below, preserved all its rights in the premises, and assigns several errors in this court. All of them seem to come to this, that it is entitled to recover, either as actual or incidental damages, the cost of reconstruction of this bridge without abatement.

Sections 5, 6, 7, and 8 of chapter 185 of the Acts of 1909, contain the provisions of that act with reference to the allowance of damages for property taken in laying out a drainage district. Section 7 contains the following:

"In estimating the damages, the viewers shall give the value of the land proposed to be taken without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages."

It will be observed that this language is the same as that used in our statute providing damages in eminent domain proceedings generally. Section 1857, Thompson's Shannon's Code.

The charter of the railway company contains the following:

"The said company shall have the right, when necessary, to construct the road, or any branch thereof, across or along any public road or water course; provided the said public road and the navigation of such water course shall not be thereby obstructed."

The railway company is authorized to purchase and hold any bridge that may be necessary to carry the tracks of the railroad.

The duties of a railroad company with respect to its crossings over a natural stream or water course are regulated by the same general rules that define its obligations with respect to a street or road crossing. This will more fully appear from authorities hereafter cited.

In Tennessee it is rather well settled that the state may directly, or through a municipal agency, compel a railroad company to maintain a bridge already erected over a public road, remodel it, or build a new one, if the public safety, welfare, or necessity requires such an exercise of the police power. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943; Harriman v. Railroad, 111 Tenn. 538, 82 S.W. 213; Chattanooga v. Railroad, 128 Tenn. 399, 161 S.W. 1000; Southern Railway Co. v. State, 130 Tenn. 261, 169 S.W. 1173, L. R. A. 1915B, 766.

Although the question has not arisen here, it is equally well settled in other jurisdictions that the same obligations rest upon a railroad company with respect to its bridges over water courses.

Acting under authority of a statute of Illinois, the commissioners of a drainage district undertook to compel a railroad company to remove its bridge over the channel of a stream called Rob Roy creek, which it was necessary to alter in carrying out the drainage project. The railroad company resisted this demand, and litigation ensued. The statute under which they acted, and the demand of the drainage commissioners, was sustained by the courts of Illinois (212 Ill. 103, 72 N.E. 219) and finally by the Supreme Court of the United States. In the course of its opinion the latter court said:

"When the railway company laid the foundations of its bridge in Rob Roy creek, it did so subject to the rights of the public in the use of that water course, and also subject to the possibility that new circumstances and future public necessities might, in the judgment of the state, reasonably require a material change in the methods used in crossing the creek with cars. It may be--and we take it to be true--that the opening under the bridge as originally constructed was sufficient to pass all the water then or now flowing through the creek. But the duty of the company, implied in law, was to maintain an opening under the bridge that would be adequate and effectual for such an increase in the volume of water as might result from lawful, reasonable regulations established by appropriate public authority from time to time for the drainage of lands on either side of the creek. Angell, Water Courses (6th Ed.) § 465b, p. 640." Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 4 Ann. Cas. 1175.

This case followed an earlier decision of the same court. New Orleans Gas Light Co. v. Drainage Commissioners of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831, where the gas company was required to remove its pipes from one portion to another portion of certain streets in New Orleans, without compensation, to accommodate the plans of a drainage project.

The same doctrine was again announced by the Supreme Court of the United States in Lake Shore & M. S. R. Co. v. Clough, 242 U.S. 375, 37 S.Ct. 144, 61 L.Ed. 374. The latter case perhaps going a little further than the earlier ones.

These decisions have...