St. Louis Southwestern Ry. Co. v. Board of Directors of Miller Levee Dist. No. 2

• Decision Date: 02 August 1913
• Docket Number: 3,886.
• Citation: 207 F. 338
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. BOARD OF DIRECTORS OF MILLER LEVEE DIST. NO. 2 et al.
• Court: U.S. Court of Appeals — Eighth Circuit

207 F. 338

ST. LOUIS SOUTHWESTERN RY. CO. v. BOARD OF DIRECTORS OF MILLER LEVEE DIST. NO. 2 et al.

No. 3,886.

United States Court of Appeals, Eighth Circuit.

August 2, 1913

Edward A. Haid, of St. Louis, Mo., and T. J. Gaughan, of Camden Ark. (S. H. West, of St. Louis, Mo., and J. T. Sifford, of Camden, Ark., on the brief), for appellant.

Henry Moore, Jr., of Texarkana, Ark., for appellees.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

WILLARD District Judge.

The railway company, a citizen of Missouri, which was the plaintiff below, brought this suit for the purpose of enjoining the defendants, citizens of Arkansas, from constructing a levee on the Red river, in Miller county Ark., which construction, it is alleged, would compel the plaintiff to rebuild its bridge across the river near the proposed levee, at an expense of over $150,000. The levee district is a corporation organized by special act of the Legislature in 1911. The court below sustained a demurrer to the amended bill, and, the plaintiff declining to plead further, it dismissed the bill. The amended bill alleged:

'That the defendant board of directors of Miller Levee District No. 2, is undertaking to build a levee of solid earth along the south and west side of Red river, beginning at a point in Miller county, Arkansas, where the state line between the states of Arkansas and Texas intersects the south bank of Red river, at or near Index, in the county of Miller and state of Arkansas, down along the southern and western bank of Red river to a point near the town of Garland City on the line of the plaintiff's road, and at or near said point to connect with the roadbed and cross the right of way of the plaintiff's railroad, and thence on southerly and easterly. That the purpose in view on the part of said board of directors of Miller Levee District in the construction of said levee, to confine the flood waters which are now and which have always heretofore been accustomed to flow down the Red river and the low lands adjoining its channel into the channel of said river north and easterly of said line of levee, and to prevent any of the waters accustomed heretofore to flow down said river and the low lands adjoining it from coming upon any of the lands embraced in said levee district, being those lands lying south and west of the said levee, and between it and what is known as the foothills or high lands of Miller county adjoining said Red river bottom.

'The plaintiff alleges that said board of directors, with the purpose and intent aforesaid, has caused surveys to be made and the location of said levee to be fixed by engineers, and plans and specifications thereof to be drawn, and has or is about to arrange for the building of said levee by contract with a contractor or contractors, and is now engaged in negotiating for the sale of bonds in the sum of $300,000, or some like amount, in order to raise funds for the purpose of constructing said levee.

'The plaintiff further alleges: That in the spring of 1908 an overflow occurred in the Red river, the height of which was duly ascertained and marked, so that it is now well known. Said overflow was regarded, and is in fact, a fair example of the floods which may reasonably be expected to occur in said river. That the levee proposed to be constructed by the defendant district will be about five feet higher than the high water of the year 1908, and therefore higher than any known high water in said river.

'The plaintiff further alleges that a levee district has heretofore been created by a special act of the Legislature of the state of Arkansas on the opposite side of Red river, on what is known as the Lafayette county side, and a levee constructed of solid earth on an average of two feet higher than the high water of said river in the year 1908, above referred to. And, further, the plaintiff alleges that it is advised, and alleges as true, that the said levee district on the Lafayette county side intends to, and will in the near future, increase the height of said levee so that it will be of at least as great, if not greater, height than the levee proposed to be constructed by said defendant board of directors.

'The plaintiff further alleges that between said two embankments or levees not more than two-fifths of the flood water of Red river has heretofore been accustomed to pass, and that the effect of confining all of said water, the same being river water and accustomed to flow down the natural channel and natural drainage tributary thereto, in Red river will be to raise the water in the channel of said river to such a height as will overflow said levee in case of a flood similar or like the one of 1908, which said floods may reasonably be expected.

'The plaintiff further alleges: That more than 20 years ago, by special act of Congress, and under the authority and approval of the Secretary of War, it constructed a railroad bridge across said river near Garland City, and built a roadbed across the lowlands adjoining said river, leaving sufficient openings or trestle work to allow all flood water from said river which might reasonably be anticipated to pass free from obstruction through the same. * * * That the top of its pivot pier in its bridge across Red river is less than six inches above the high water of 1908, and the bottom chord of the draw of said bridge, which is the lowest part of the steel work of the bridge, is not more than high enough above that high-water mark to allow for the passage of drift. That by the construction of said levee the water of Red river will be raised during ordinary overflow more than two feet above the high-water mark of 1908; and should the Lafayette county levee be added to in height, as is now proposed by the Lafayette Levee District No. 1, then the water in Red river at said bridge will be raised at least five feet higher than the high-water mark of 1908, with the result that the water will be about five feet above the present height of the pivot pier, and will cause the logs and driftwood which always float down said river during overflows to lodge against the draw span of said bridge, and the pressure from said accumulated drift would in all probability cause said bridge to give way. * * *

'The plaintiff further states: That in the event said proposed levee should be constructed, and should the levee on the Lafayette county side be increased in height, so that the height of two said levees would be substantially the same, one or the other of said levees would necessarily in the time of high overflow give way, and that it would not be possible for the plaintiff to know which of said levees would give way, so that it would be necessary for it to provide, by additional openings on both the Miller county side and the Lafayette county side of the main channel of said river, to take care of the immense volume of water which would be discharged over and through the openings in the levee which should break and give way. That the expense necessary to provide for the additional openings required would be in excess of $100,000. * * *

'The plaintiff further alleges: That the act creating said levee district does not prescribe the height to which the levee should be built, nor the distance from the bank of the river where the levee should be constructed. That the defendant board of directors have located said levee so near the bank of said river, and are intending to and will construct it of such height, that it will be of no benefit to the lands which were intended to be protected.'

The amended bill also alleged that if the levee is constructed the company will be compelled to rebuild its bridge at a cost of over $150,000, which the levee district cannot pay, owing to the limitation on the amount of taxes which it can raise. The amended bill further alleged that in the condemnation proceedings it...