Virginian Ry Co v. Mullens

Decision Date24 May 1926
Docket NumberNo. 163,163
Citation46 S.Ct. 526,271 U.S. 220,70 L.Ed. 915
PartiesVIRGINIAN RY. CO. v. MULLENS
CourtU.S. Supreme Court

Messrs. H. T. Hall, of Roanoke, Va., W. H. T. Loyall, of Norfolk, Va., G. A. Wingfield, of Roanoke, Va., and E. W. Knight, of Charleston, W. Va. (Messrs. M. P. Howard, of Pineville, W. Va., Williams, Loyall & Tunstall, of Norfolk, Va., and Martin & Wingfield, of Roanoke, Va., of counsel), for petitioner.

Mr. J. Albert Toler, of Mullens, W. Va., for respondent.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was an action in a state court in West Virginia to recover for injuries to the plaintiff's land resulting from a nuisance alleged to have been created and maintained by the defendant. The action was begun June 14, 1921. The case stated in the complaint was to the effect that the defendant constructed in 1904, and operated up to the time of suit, a railroad through West Virginia, a short section of which was located on a right of way acquired for the purpose and extending laterally into a natural stream bounding the plaintiff's land; that this section was constructed by filling in and building up the outer part of the bed of the stream opposite his land and placing the track on the embankment so made; that the embankment and track narrowed the former channel, crowded the current against the bank on the plaintiff's side and exposed his land to overflow and injury; and that on divers occasions thereafter, particularly in the years 1918 and 1919, this obstruction caused the waters to wash away portions of the bank and to overflow and injure his land.

The defendant interposed a plea putting in issue the allegations in the complaint, and by a further plea insisted that the road was under federal control from December 28, 1917, to March 1, 1920, and that no liability attached to the defendant for such of the injuries as occurred during that control.

The trial resulted in a verdict and judgment for the plaintiff, and the Supreme Court of Appeals of the state, although petitioned by the defendant to review the judgment, declined so to do, thus making the trial court the highest court of the state in which a decision could be had. American Ry. Express Co. v. Levee, 263 U. S. 19, 44 S. Ct. 11, 68 L. Ed. 140. The case is here on writ of certiorari, and the question presented is whether there was error in holding the defendant liable for injuries done during federal control.

The case shown by the evidence differed from that stated in the complaint. Affirmatively and without dispute the proofs disclosed that the railroad was not constructed by the defendant, but by another railway company, and was purchased by the defendant in 1907, after it was completed and in full operation; that after the purchase the defendant used the embankment and track in the bed of the stream as an integral part of the road, just as it was used before; that the plaintiff, although familiar with the situation, made no complaint of this use or of the presence of the embankment and track in that place; that on December 28, 1917, the United States took possession of the railroad and its appurtenances, and from that time to March 1, 1920, operated and controlled the same to the exclusion of the defendant; that during such operation and control the United States exercised the usual rights of an owner by altering parts of the roadbed, widening tunnels, laying double tracks along parts of the road and using the property as best suited the government's purposes. As respects the section in the bed of the stream the evidence showed that the United States made no change therein, but continued the use theretofore made of it as part of the road; and as respects the injuries done to the plaintiff's land the evidence, taken most favorably to him, disclosed that, while there was some cutting of the bank on his side soon after the road was constructed and also during the defendant's possession and operation, the chief injuries occurred in February, 1918, and July, 1919, during federal control, when in the course of two unusual freshets portions of the bank were washed away and his land was overflowed and materially injured.

At the conclusion of the evidence the defendant, relying on acts of Congress and proclamations of the President bearing on the federal control, requested the court to charge the jury that the defendant was not liable for the injuries occurring during such control and that as to them the finding and verdict must be for the defendant. But the request was refused and the defendant excepted. If the request was well grounded in law, its refusal was plainly prejudicial.

While the evidence may have admitted of a finding that the embankment and track in the bed of the stream tended to obstruct and divert the current in such way as to constitute a nuisance, it affirmatively and indubitably precluded a finding that the defendant constructed them or did more than use them as an integral part of a completed road which it had purchased as a going concern from a prior owner. Thus there was no basis no which the defendant could be charged with liability as the creator of the nuisance. If liable at all, it was liable only because it continued the use to which the embankment and track were put by its grantor. There has been much contrariety of decision in the courts of the several states as to whether a purchaser who merely continues a prior use of such a structure may be charged, at the instance of one who has made no complaint or objection, with liability for maintaining a nuisance. The question ordinarily is one of local law to be resolved according to local decisions, and out of deference to the action of the court below we assume that in West Virginia a complaint or objection is not deemed essential, although no decision on the point by the Supreme Court of Appeals has been brought to our attention. But here it was insisted and the proofs conclusively established that the defendant's use ceased when federal control began, and that the chief injuries occurred during the period of that control. The questions of the defendant's legal relation to the road and the operation thereof while under federal control and of its liability for injuries occurring during that period involved a consideration of the nature of that control and of the operation and effect of federal statutes and proclamations bearing on the subject. In...

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    ...and many decisions of the Supreme Court of the United States and of the various states cited therein; Virginian Railway Company v. Mullens, 271 U.S. 220, 46 S.Ct. 526, 70 L.Ed. 915. The reason advanced for appellee's drastic shift in viewpoint is that the Supreme Court of Kentucky in Dick v......
  • Van Huffel v. Harkelrode
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    ...be urged here. Compare Peck v. Heurich, 167 U. S. 624, 628, 629, 17 S. Ct. 927, 42 L. Ed. 302; Virginian Ry. Co. v. Mullens, 271 U. S. 220, 227, 228, 46 S. Ct. 526, 70 L. Ed. 915; New York v. Kleinert, 268 U. S. 646, 650, 45 S. Ct. 618, 69 L. Ed. Third. There remains for consideration a que......
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