Payne v. Bevel

• Decision Date: 04 December 1923
• Docket Number: 12183.
• Citation: 225 P. 691,99 Okla. 106,1923 OK 1092
• Parties: PAYNE, DIRECTOR GENERAL OF RAILROADS, v. BEVEL.
• Court: Oklahoma Supreme Court

225 P. 691

99 Okla. 106, 1923 OK 1092

PAYNE, DIRECTOR GENERAL OF RAILROADS, v. BEVEL.

No. 12183.

Supreme Court of Oklahoma

December 4, 1923

Rehearing Denied Feb. 19, 1924.

Application to File Second Rehearing Denied April 8, 1924.

Syllabus by the Court.

Where a party in a suit against a railroad for damages from overflow caused by an embankment made by the railroad in constructing its roadbed elects to treat the cause as permanent, and not abatable by the use of labor or money, and recovers judgment for the full value of his land, neither he nor his successor in title can maintain an action for damages against said railroad for an overflow of the same land from the same cause.

The record in this case shows that some three or four years prior to the bringing of this suit, the predecessor in title of the plaintiff in this suit brought suit against this same railroad for damages to the same land, and recovered judgment for the full value of the land, and the railroad paid said judgment. Held, that same is a bar to this action.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by J. M. Bevel against John Barton Payne, Director General of Railroads, as Agent under section 206 of the Act of Congress approved February 28, 1920 (U. S. Comp. St. Ann. Supp. 1923 § 10071 1/4cc). Judgment for plaintiff, and defendant appeals. Reversed.

M. D Green and H. L. Smith, both of Muskogee, for plaintiff in error.

King & Crawford and H. West, all of Ada, for defendant in error.

MAXEY C.

This action was brought by defendant in error, hereinafter called plaintiff, against the plaintiff in error, hereinafter called defendant. The action is for damages caused to plaintiff's crop and land by overflow caused by a railroad embankment which changed the natural course of water and caused the overflow of plaintiff's land. The defendant set up in its answer, among other things, a plea of res judicata, wherein it says:

That in a former suit between William McDaniel, the then owner of the title to said land, against Charles Schaff, the receiver of properties of the defendant railway company, said William McDaniel in his petition in that case alleged:

"That said railway company's line of railroad now operated by receiver as aforesaid runs across the northwest quarter (N.W. 1/4) of the northwest quarter (N.W. 1/4) of section 17, T. 25 N., R. 15 E., of said land; that at a point about 400 yards north of the station at Tyrola, Okl., on said line of road, defendant's line of railway crosses a natural water course as it enters said above-described land and that through said land the roadbed is thrown up on a grade of from 3 to 10 feet higher than the surrounding lands, and plaintiff avers that these conditions existed at and before the time said receiver was appointed, and have continued to exist since that time, and that both the railway company and receiver are and were well aware of said conditions, and that each has wholly failed and refused to undertake to remedy same or to establish or maintain proper opening for the outlet of surface and other water falling on and flowing over and across the above-described lands, and that they have caused to be filled up the natural water courses across said lands, causing the surface waters and other waters to be deflected from their natural and usual courses, and to flow over plaintiff's said lands, covering same at places to a depth of from 10 to 15 feet in sand, and totally destroying all of the plaintiff's said above-described lands situated in said sections 8 and 17, T. 5 N., R. 6 E., and plaintiff avers that his damages and the cause thereof are not abatable by the expenditure of money or labor, or both, but are permanent, and that all of his above-described lands have therefore now been totally destroyed, and he is now entitled to recover in this one action for the total destruction thereof, and that the reasonable fair market value of said lands is $1,000."

That a trial was had in said cause on the 22d day of December, 1917, and the following judgment entered:

"Now on this 22d day of December, 1917, the same being one of the judicial days of the regular October, 1917, term of this court, comes on for trial the above-entitled cause, and by agreement of the parties a jury is waived, and the cause is submitted to the court for the final trial and determination, and the court, having seen the pleadings and heard the evidence and the argument of counsel, and being fully advised in the premises, doth find that the defendants are liable to the plaintiff as set out in his petition, and plaintiff's damages and the cause thereof are not abatable by the expenditure of labor or money, but are permanent, and that plaintiff's lands described as follows: [Here follows description of lands]--have been totally destroyed, and

the plaintiff is entitled to recover in this action the full value thereof, and that defendants are liable to plaintiff in the sum of $300 and costs. Wherefore, it is considered, ordered, and adjudged by the court that the plaintiff have and recover of and from the defendants the sum of $300 and all costs herein laid out and expended." The defendant contends that the judgment in that case, being for the full value of said land, is a bar to this action, and that neither the plaintiff in that suit nor his successor in title can maintain any other suit for damages to said land. Counsel states his proposition as follows:

"The judgment rendered in favor of the previous owner, plaintiff's grantor, is res judicata that the damages and the cause thereof were original and permanent, and is conclusive as to any damages subsequently suffered by plaintiff, and the trial court erred in submitting the case to the jury, and in admitting certain immaterial evidence, in giving certain instructions to the jury, and in refusing to give defendant's requested instructions."

This proposition and argument thereunder are grouped under specifications of error from 1 to 22. It will be seen that William McDaniel, while still the owner of the fee, had brought suit against the railroad for a permanent injury to the land by overflow alleged to have been caused by the railroad's failure to establish or maintain proper opening through its embankment on which its road was constructed, and further alleged that the damage and cause thereof were permanent, and were not abatable by the expenditure or money or labor or both. After the judgment was obtained in this case, which is above set out, and some time before the commencement of this suit, William McDaniel sold the premises to the plaintiff J. M. Bevel, and some time after Bevel became the owner of the land, a heavy rain occurred, and the land was again overflowed, being the same land that was overflowed prior to the time McDaniel brought his suit in which he alleged that the property was totally destroyed and that the cause was not abatable by labor or money, and asked for a judgment for the value of the land. The question presented under this head is whether Bevel, as successor in title, can maintain this suit for damages to his crop when the same had been finally adjudicated in the case brought by William McDaniel, who recovered the full value of the land according to the judgment entered. This question has been before this court a number of times, and in the case of Chicago, R.I. & P. Ry. Co. v. Davis, 26 Okl. 434, 109 P. 214, Judge Williams laid down the following rule:

"Where the wrong is of a permanent nature, and continuous, springing from the manner in which the ditch or channel is completed, on account of the diversion of surface water, the land of the abutting proprietor necessarily being injured by such diverted water, such proprietor may treat the act of the railway company as a permanent injury, and recover his damages in the consequent depreciation of the value of his property, and in such case the recovery of the damage results in a consent on the part of such proprietor to such manner of maintaining such ditch or channel, concluding both him and any subsequent owner of such land."

This case was followed by this court in the case of City of Ardmore v. Orr, 35 Okl. 305, 129 P. 867, in which the Chief Justice says:

"If the damages [suffered] by plaintiff are permanent, then the measure thereof is the value of the property destroyed, or the depreciation in the value of the property injured. * * *

If it is permanent, then the injured party may recover in one action all damages he has or may sustain as a result of the negligent construction of the improvements complained of; but, if it is not permanent, then he may recover only such damages as he has sustained up to the time of the institution of his action."

In the case of St. Louis & S. F. Ry. Co. v. Stephenson, 43 Okl. 676, 144 P. 387, L. R. A. 1916E, 966, the court says:

"While the rule is well established that there may be as many successive recoveries as there are successive injuries caused by a permanent structure, when its construction and continuance are not in themselves necessarily injurious, yet, where the pleadings and evidence, as in the instant case, show conclusively that the permanent character of a railroad embankment, and its continuance as originally constructed, necessarily produced the injury to the freehold and caused the depreciation in the value thereof complained of at the time of construction, and that such injury had wholly occurred when plaintiff acquired the land, it must be held that she took it in its then known condition."

Under the foregoing decisions, the court holds that, where the suit is for the total destruction of the property, and the judgment is rendered for the full value of the property, and said...