Oregon-Washington R. & Nav. Co. v. Royer

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Oregon-Washington R. & Nav. Co. v. Royer, 255 F. 881 (9th Cir. 1919)
• Decision Date: 06 January 1919
• Docket Number: 3203,3204.
• Parties: OREGON-WASHINGTON R. & NAV. CO. v. ROYER. SAME v. WASSON et al.

255 F. 881

OREGON-WASHINGTON R. & NAV. CO. v. ROYER.

SAME v. WASSON et al.

Nos. 3203, 3204.

United States Court of Appeals, Ninth Circuit.

January 6, 1919

A. C Spencer and C. E. Cochran, both of Portland, Or. (James E Fenton, of Portland, Or., of counsel), for plaintiff in error.

M. A Langhorne, E. M. Hayden, and F. D. Metzger, all of Tacoma Wash., and Lon Boyle, of Prosser, Wash., for defendants in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

These were actions by landowners, plaintiffs below, against the railroad company, defendant below, to recover damages for injuries to property resulting, as alleged, from an overflow of the lands of the plaintiffs, caused by the construction of an embankment by the railroad company over and across an alleged water course known as Spring creek, and by placing in the alleged bed or channel of the alleged creek a pipe or drain which was insufficient to carry off the waters that flowed down through the creek at certain seasons of the year. The railroad company denied all damage, and, after trial to a jury, verdicts and judgments were in favor of plaintiffs, and the railroad company sued out writs of error. As the two cases were tried together, and present the same legal questions, they may be conveniently considered in one opinion.

The contention of the railroad company, as embodied in a request for an instruction, is that the only justifiable conclusion from the evidence is that what the plaintiff below called the channel of Spring creek is nothing more than a drain for surface water resulting from melting snow in the drainage area above the lands affected, and that, except from the waters of such melting snow, Spring creek in its channel carries no water, and is dry for 11 months of the year, and that as a legal consequence the surface water became a 'common enemy,' against the flowage of which the landowner was obliged to defend himself. But the District Court declined to sustain such a position, and submitted the case to the jury upon the theory that Spring creek is a natural water course, and that the railroad company was bound to construct a culvert or to make other adequate provision to permit the passage of the waters flowing down at times of all ordinary freshets, but was not bound to anticipate or provide against unprecedented or unexpected floods. To test the ruling of the court, it becomes necessary to get a clear understanding of the physical situation.

At the time of the damage to the property of the plaintiffs below, the railroad ran westerly between Walla Walla and North Yakima, Wash., over and across a part of the land of the plaintiff Wasson and north of and near the land of the plaintiff Royer.

Spring creek has its origin in the Rattlesnake Hills, some 15 or 16 miles northwest from the lands of the plaintiffs. The upper limits of the head are in sections 25, 11, and 24; the creek runs generally southeasterly at the head, and bears southwesterly for 3 or 4 miles, then southeasterly for about 2 miles into the Yakima river. The general lay of the land from where Spring creek has its origin is rolling, but the creek is in a canyon for 14 or 15 miles, and until a short distance from the railroad right of way, where the ground spreads out flat; the point at which the creek begins to widen being about the north line of the southeast quarter of the southeast quarter of section 20. Up to that point the channel, though irregular in width and depth, is well defined, and drains 20,000 or 25,000 acres; the water coming down from various gulches into the Spring creek gulch. The bed of the creek is bridged at several places where the county roads cross it.

The resident engineer of the railroad company testified that he was well acquainted with the immediate country involved, and had prescribed the size of the culvert which was put in, and believed that a 48-inch diameter was sufficient to carry off the 'normal flow of surface water that came down. ' He said that from the county road south of Starkey's place, which is in the southeast quarter of the southeast quarter of section 20, and in the course of Spring creek, there was a small rock dam, in addition to several other small obstructions in the channel above the Sunnyside dam, which was approximately 40 feet high; that after the water passed over the wasteway it came down in such volume 'that the original channel was so small as to be unable to carry the water, and it overflowed and spread out over the land, forming two channels in Mr. Starkey's field, one marked on the map (which was introduced in evidence) 'original channel,' and the other 'overflow channel.' ' He described the water as passing on down to the next 40 below, which would be the southeast quarter of the southeast quarter of section 20, and said that 'the channels came together again as a main channel, with the exception of the water spreading out to a considerable extent on the ground,' that the water overflowed the greater part of the Starkey land, running entirely out of the channel, and then, as it flowed to the south line of section 20, it struck the other dam, which had been put in north of the county road, and again spread out.

The fall from the source of the creek to where it crosses the railroad right of way is something over 2,000 feet. The only outlet from the valley is under the railroad tracks. The water which is caused by snow melting in the hills only flows during the spring. The amount of snow during a season varies from nothing to 18 inches. During seasons when the snow melts gradually, and there is no frost in the ground, the water is absorbed, and there is none in the creek, and when the ground is frozen, and the snow in the hills is melted by a chinook wind, there is water in the creek.

At the point where Spring creek runs under the right of way of the railroad company there has been a fill on each side of the creek, 6 to 8 feet deep. The fill extends from the creek about 600 feet east of the county road in section 28, where it passes from an embankment to a slight cut. The drain under the railroad track and within the right of way consisted of one 48-inch corrugated metal culvert, which was about 4 feet below the top of the track. When this culvert was put in, the engineer inquired of the residents then thereabouts as to the usual flowage of water down Spring creek, and also examined the land toward the foot of the Rattlesnake Hills, and estimated the flowage to be about 20 second feet.

About January 20, 1916, there were from 12 to 16 inches of snow. There was not much snow on the level lands, except where drifted into depressions, but in the hills there was a great deal. The ground was frozen, and the snow did not melt until the chinook wind commenced on January 20th, blowing only during the daytime, and lasting until January 23d. The snow melted very rapidly, causing a sudden rush of waters, which when they arrived at the embankment of the railroad, destroyed...