Union Pacific Railroad Co. v. Vale, Oregon Irrigation Dist.

• Decision Date: 28 March 1966
• Docket Number: Civ. No. 63-399.
• Citation: 253 F. Supp. 251
• Parties: UNION PACIFIC RAILROAD COMPANY, a corporation, Plaintiff, v. VALE, OREGON IRRIGATION DISTRICT, a quasi-municipal corporation, Defendant.
• Court: U.S. District Court — District of Oregon

253 F. Supp. 251

UNION PACIFIC RAILROAD COMPANY, a corporation, Plaintiff, v. VALE, OREGON IRRIGATION DISTRICT, a quasi-municipal corporation, Defendant.

Civ. No. 63-399.

United States District Court D. Oregon.

March 28, 1966.

COPYRIGHT MATERIAL OMITTED

Walter J. Cosgrave and L. James Bergmann, of Maguire, Shields, Morrison, Bailey & Kester, Portland, Or., for plaintiff.

Robert D. Lytle, Vale, Or., for defendant.

KILKENNY, District Judge:

Plaintiff's first, second and third claims arise out of damage to plaintiff's railroad right-of-way and tracks on plaintiff's Oregon Eastern Branch (Vale to Burns, Oregon), allegedly resulting from water escaping from defendant's irrigation canal located on a hillside above plaintiff's right-of-way. The first and second claims demand money damages, while the third claim seeks equitable relief against continuing trespasses.

The fourth and fifth claims are for damage to plaintiff's railroad right-of-way and tracks between railroad mile-posts 3 and 4 on its Brogan Branch (Vale to Brogan, Oregon), a section of which was damaged by a quantity of water from defendant's nearby irrigation canal, which burst while carrying a large volume of water.

Plaintiff is a common carrier of persons and property by railroad in interstate and intrastate commerce, and was engaged in operating a railroad system consisting of the lines of railroad above mentioned and others located in the state of Oregon and in other states of the United States.

Defendant is an irrigation district, a quasi-municipal corporation, organized under the laws of the state of Oregon for the purpose of operating and maintaining an irrigation district and delivering water through irrigation canals to the lands located within the boundaries of the district. In particular, the object of the business of the defendant was to store, and during the irrigation season to transport and deliver on a proportional basis, certain water to lands within its boundaries. The irrigation canals involved in the controversy are part of an irrigation system known as the "Vale Project" constructed by the United States of America for the benefit of defendant, pursuant to contract made in 1926. The physical works of the project, including the irrigation canals involved in this controversy, were transferred to and accepted by defendant for operation and maintenance purposes only in January, 1949. Under the terms of the contract, the defendant is required to promptly repair and properly care for, operate and maintain the transferred works, all without cost to the United States. The title to the transferred works remained in the Government. The irrigation system serves 32,000 acres of land, of which approximately 28,254 acres are served through the canal located high above the railroad track of plaintiff at the points here being considered. The application of water through the process of irrigation is a necessity in order to produce crops of an economic value in this part of the state of Oregon.

CLAIMS ONE, TWO AND THREE

At a point between railroad mileposts 37 and 38 on the Oregon Eastern Branch, the said railroad track was, and is, located on the northerly side of the Malheur River, approximately parallel to the course of that river. Located to the north of said track is a steep hill rising from the river level. The track was, and is, located in the narrow area between the foot of said slope and the river. Located close to the brow of the hill above the track is the defendant's canal which was, and is, operated and maintained by defendant for use in conveying irrigation water. The railroad track existed in said location for a great many years before the construction of the canal. At the point in question, on or about August 20, 1961, a sliding and heaving action occurred in the soil adjacent to and underneath the plaintiff's track. The plaintiff was compelled to relocate and construct a new road bed and track at said point, for a distance of approximately 870 feet, so as to curve outward away from the base of the slope. Additionally, the plaintiff replaced the culverts under said track, in all of which plaintiff incurred substantial expense. The evidence is uncontradicted that defendant's canal was located on the hillside, high above the right-of-way and track of the plaintiff, between said posts where the slide occurred. At the point above the slide, the canal is approximately 40 feet in width. The line portion is 34 feet wide from the top of the lining on the hillside to the top of the lining on the river side. At this point, it is 7 or 8 feet deep. The water is diverted from the Malheur River, some 16 miles upstream, and although the exact flow at the slide area is not shown in the record, there is no doubt but that it was rapid. During the months of May, June and July, 1961, in excess of 83,000 acre-feet of water was diverted into the canal, with an estimated loss of 10% by the time it reached the slide area; leaving approximately 75,000 acre-feet flowing past the point under scrutiny. One of the experts testified that at times "there would be three times as much water in the canal as there would be in the Malheur River below". In analyzing the testimony and the relative positions of the parties, we must keep in mind that the railroad track was constructed in 1911 or 1912, and that the canal was not constructed until 1929.^* Aside from the fact that the canal was constructed close to the brow of the hill is the further fact that the hill below the canal is very steep. The soil at that point was so unstable at the time of construction that an engineer working for the Bureau of Reclamation, in his report said, "At the time of canal construction the slope was barely stable and any disturbance could have triggered new earth movement." A ground water geologist called by the defendant stated in his report that the slope at the point of the slide was "an ideal description of a potential landslide area," while another described it as a "critical slope."

In my mind, there is no doubt but that large and destructive quantities of water escaped from the canal at or about the point of the slide. Even defendant's witnesses conceded that there was an escape of water at the point. The only detailed engineering study made in connection with the slide covering a period of approximately two years convinces me beyond question that the great volume of water in the canal and the escape of a portion, rather than normal rainfall, was the causative factor creating the slide.¹ Weather records indicate there was only .73 inches of rain between March 20th and May 21st of the same year. During the year 1961, the year in question, rain could not have been a causative factor in that there was only 8.12 inches of rain at this point for the entire year, and from April 1st through September 30th, there was less than 2 inches of rain. The Court takes judicial notice of the fact that the canal system is in an extremely arid region of the state of Oregon. Of course, an annual rainfall of less than 9 inches would indicate that the natural precipitation could not have substantially contributed to the slide.

Throughout the trial, and in the briefs, the slide area was generally referred to as located at railroad milepost 37.60. However, this is the exact location of the culvert under the track at the extreme east end of the exact slide area. The center of the slide was approximately 102 feet west of the culvert. The track relocation, due to the slide, covered a distance of approximately 1,000 feet.

Bolstering a finding that leakage from the canal was the cause of the slide, is the fact that the railroad had no serious problems from the time of the construction in 1911-1912 until after the construction of the canal in 1929. The record is clear that there has been constant trouble with slides since the canal was constructed. In 1931 and 1932, there were repeated serious failures in the canal bank, together with definite signs of settlement in the bed of the canal. In the annual report of the Vale Project in 1933 is contained language that definitely points to the very problem with which we are faced.² In 1935, it became necessary for the railroad to issue an order permanently slowing down trains passing this point to a speed not in excess of 10 miles per hour due to a "soft spot" in the right-of-way at the point in question. This "slow order" has been in continuous effect since that time. In 1960, the condition became so serious that the railroad track began to move out of alignment, both vertically and horizontally, and throughout the entire 1960 irrigation season, the section crews and the roadmasters had to spend most of their time in maintaining the track at this point so that the trains would be able to move. A large amount of cement was used by defendant in grouting spots in the lining of the canal after the end of the 1960 season, but as soon as water was introduced in the spring of 1961, the problem again presented itself. Beginning in May, 1961, the earth at the toe of the slope began to heave out and away from the slope and to move up under the track forcing the track both up and out toward the river. This required an alignment of the track on several occasions until by the end of June it was impossible to maintain the track at its original location.

The relocation of approximately 585 feet of track in June, 1961, temporarily solved the problem. However, the sliding continued until muck and other debris at the toe of the slope had moved the relocated track some 22 feet so that late in August of the same year, the track was again displaced laterally and vertically. Throughout August, September and October, constant work was necessary in leveling the track so that the trains could pass. Finally, by shifting a total of 870 feet of track toward the river so that the outside extreme of the curve was approximately 50 feet from its original location, the problem was...