Southern Ry. Co. v. Jefferson, Record No. 3032.
| Decision Date | 10 June 1946 |
| Docket Number | Record No. 3032. |
| Parties | SOUTHERN RAILWAY COMPANY v. S. F. JEFFERSON. |
| Court | Virginia Supreme Court |
1. WATERS AND WATERCOURSES — Obstruction of Flow — Culverts — Floods — Act of God. — No person or corporation has a right to construct a culvent over a natural watercourse in such manner as to obstruct the flow of the stream and throw its waters back on another owner's property to its injury, and the culvert or opening must be sufficient to accommodate, not only the natural and normal flow of the stream, but such abnormal and excessive flow as may reasonably be anticipated in times of high water and flood. There is no duty, however, to provide for floods so unusual and extraordinary as to bring them within the category of an "act of God."
2. WATERS AND WATERCOURES — Obstruction of Flow — Whether Damage Was Caused by Obstruction or Unprecedented Flood — Case at Bar. — The instant case was an action for the destruction of a barn on plaintiff's field. Plaintiff contended that a culvert constructed by defendant railroad company under its tracks was too small to discharge the water that might be anticipated to be brought in and that the aperture was obstructed to the extent of 20 to 25% of its capacity by the growth of honeysuckle which had negligently been allowed to accumulate. It did not appear how or when the barn was actually washed away, but during the night that it was washed away and totally destroyed, and just before, there occurred in the vicinity one of the heaviest and most disastrous rainfalls that ever happened within the knowledge or memory of men living in the community. Defendant company contended that the sole proximate cause of the damage was occasioned by an act of God; that the flood from which the injury resulted was phenomenal and thus was not to be anticipated or foreseen. An expert civil engineer testified that the size of the culvert was ample to carry off the normal waterfall and extra rainfall which might have been anticipated in the area.
Held: That the contention that the negligence of the railroad company was the proximate cause of the loss sustained by plaintiff was not sustained.
Error to a judgment of the Circuit Court of Pittsylvania county. Hon. Kennon C. Whittle, judge presiding.
The opinion states the case.
Thomas B. Gay and A. M. Aiken, for the plaintiff in error.
Joseph Whitehead, Jr., and Eugene C. Hurt, Jr., for the defendant in error.
S. F. Jefferson was the plaintiff in the trial court and is the defendant in error here. He is a farmer residing on his farm in pittsylvania county, Virginia, about three miles north of the town of Chatham. This farm lies along the right-of-way way of the main line of the Southern Railway Company and is east of the railway line. Adjacent to the farm there is a fill made of earth to support the railway tracks. A small branch runs under the track and through the fill by means of a culvert, of rock and concrete, which is 3 X 4 feet presenting 12 square feet of aperture. The culvert was constructed when the railway line was built, which was sometime in the sixties. A pipe four inches in diameter would conduct or accommodate all the water of the branch in normal weather conditions.
In 1923, Mr. Jefferson built a tobacco barn on his land, about 275 feet downstream from the culvert and about 50 feet from the branch bank. The barn was situated on a position on the land of an elevation of 1 9/10 feet above the bed of the stream and directly in front of the culvert, that is, a straight line projected from the culvert would strike the barn, but the branch makes a curve to the right.
During the night of September 18 and 19, 1944, this barn was washed away and totally destroyed. Just before and during this period there occurred in this vicinity one of the heaviest and most disastrous rain falls that ever happened within the memory or knowledge of men living in that community. Some of its results were simply appalling. The town of Chatham, in consequence, was without water for three days. It was without highway ingress or egress for that period. The railway could run no trains for three days. Fifty or more highway bridges in Pittsylvania county were completely or partially washed away. Flowing by Chatham, and within two miles of Mr. Jefferson's branch, is Cherry Stone Creek, which rose 28 feet at Chatham and washed away a flour mill that had stood near the creek unharmed since the Civil War. White Thorn Branch, a few miles from Jefferson's branch, rose 16 feet where it crosses U.S. Highway 29, and this was so sudden that an automobile in which three women were traveling and which had stopped before crossing the highway bridge was washed away and came to rest in a swamp. The women had to take off their clothes and struggle out to avoid being drowned. Another creek a few miles distant washed away a mill and deposited it in the middle of one of the state highways. The branch that washed the barn away rose only 5 feet, but a small branch near by rose 6 feet. This latter stream, however, had nothing to do with the destruction of the barn.
The drainage area of the branch above the culvert was estimated by engineers at from 130 to 160 acres. Mr. Jefferson instituted suit against the Railway Company for damages on account of the loss of his barn, based on two alleged acts of negligence.:
(1) That the culvert was too small to discharge the water that might be anticipated to be brought to it;
(2) That the aperture was obstructed to the extent of 20 to 25% of its capacity by the growth of honeysuckle which had negligently been allowed to accumulate.
It does not appear how or when the barn was actually washed away. It was standing in the afternoon of September 18 and continued so at dark. The next morning it was gone and the indications, consisting of debris and...
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