Watts v. Evansville, Mt. C.&N. Ry. Co., 23893.

• Decision Date: 03 January 1921
• Docket Number: No. 23893.,23893.
• Parties: WATTS v. EVANSVILLE, MT. C. & N. RY. CO. et al.
• Court: Indiana Supreme Court

191 Ind. 27

129 N.E. 315

WATTS

v.EVANSVILLE, MT. C. & N. RY. CO. et al.

No. 23893.

Supreme Court of Indiana.

Jan. 3, 1921.

Appeal from Circuit Court, Gibson County; F. M. Hostetter, Special Judge.

Action by Roberta G. Watts against the Evansville, Mt. Carmel & Northern Railway Company and another. Judgment for plaintiff, and both parties appealed to the Appellate Court (120 N. E. 611,rehearing of which, was denied123 N. E. 709), which modified and affirmed the judgment. Transferred under section 1394, Burns' Ann. St. 1914. Reversed as to errors assigned by plaintiff, affirmed as to cross-errors as assigned by defendants. Opinion of Appellate Court superseded.

LAIRY, J.

This action was instituted by appellant against appellees to recover damages for injury to her real estate. The court made a special finding of facts, stated conclusions of law thereon, and rendered judgment for appellant. Both parties have appealed. Appellee filed her record under the above title and number, and assigned as error that the court erred in its fourth conclusion of law. Appellees filed their record under the title and number “Evansville, Mt. Carmel & Northern Ry. Co., and Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., Appellants, v. Roberta G. Watts, appellee, No. 9527,” and each appellant therein assigned the following errors: (1) That the court erred in overruling the separate motion of each appellant for an order requiring the appellee to separate her complaint into two or more paragraphs; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the court erred in overruling the separate demurrer of each appellant to the complaint: (4) that the court erred in each conclusion of law; and (5) that the court erred in overruling the separate motion of each appellant for a new trial.

The special finding is voluminous, consisting of 50 consecutively numbered items. The substance of so much thereof as is necessary to an understanding of the conclusions of law is as follows:

From its source to the structure herein denominated the Big Four bridge the Wabash river is 432 miles in length, with an average fall per mile of 1.44 vertical feet. The total area drained by the Wabash river and its tributaries, from its source to said Big Four bridge is 27,747 square miles. The Wabash river in its stages of ordinary flow is, and at all times herein involved has been continuously, a natural stream and waterway, and from its mouth to a point many miles above the city of Mt. Carmel, Ill., is a navigable river and a highway of commerce, both interstate and intrastate. At all points involved in this cause, said river is and always has been subject to freshets and overflows, and variances in volume and current. The record of the United States Weather Bureau, covering the period from 1885 to 1910, inclusive, discloses that the depth of the water in the low-water channel has ranged from 8.4 feet to 27.1 feet.

In 1910 and 1911 the Evansville Company constructed a line of railway from Evansville, Ind., in a general northwesterly direction to a point about one mile southwest of the city of Mt. Carmel, Ill., where it connects with the Cairo line. The Evansville Company so located and constructed its said line that it crosses the Wabash river, extending from the highlands on the Indiana side, across the lowlands subject to overflow, to the highlands on the Illinois side. As a part of said inter-highland section of railway the Evansville Company erected across the lowest water channel of the Wabash river a railroad bridge, which is designated herein the Big Four bridge. By reason of an abrupt curve in said channel this bridge was located at right angles with said channel. Said company also constructed and erected embankments, small bridges, and trestles, which in connection with said Big Four bridge constituted said inter-highland portion of said railway. These embankments, bridges, and trestles were constructed as permanent structures for the permanent support of the way, trackage, and traffic of the Evansville line. The inter-highland section of said railway is 34,537 feet in length, and was so constructed that 20.7 per cent. of its total linear measurement is represented by openings in the nature of bridge and trestle work, and 79.3 per cent. is represented by solid earthen embankments. The six solid earthen embankments were from 20 to 24 feet in width across the top, and were of various heights at different points. At the highest points they were of an altitude of 23 feet from the ground level, and at numerous other points they were of all heights, intermediate between 5 and 23 feet. At either end of said inter-highland section said embankments for considerable distances so diminish from said 5-foot height as to meet the rising ground at a level, and the sides of said embankments are constructed with slopes of 56 1/3 degrees from vertical or 33 2/3 degrees from horizontal.

Since June 25, 1906, appellant has been the owner in fee simple of certain real estate, comprising part of the low ground below said inter-highland section of railroad. One tract of her said real estate is known as the Bilderback 40, and another tract as the Watts quarter section. The right of way of said inter-highland section of railroad is 200 feet in width, and the southwesterly edge thereof runs diagonally across the Bilderback 40, so as to cut off and cover 1.17 acres in triangular form in the northeast corner of said tract, and said railroad has always extended longitudinally through the center of said right of way.

The said Evansville line is and has always been owned by the Evansville Company. By virtue of a written contract between said parties, executed November 1, 1910, the Cleveland Company became the lessee from the Evansville Company of said Evansville line for a period of 99 years from and after said date. The Evansville line, including the inter-highland section thereof as above defined, prior to July 1, 1911, was continuously maintained by its original constructor, and since July 1, 1911, has been continuously maintained by the Cleveland Company, for the joint benefit of both of said companies under said written contract, and all without any alteration, prior to the injuries hereinafter set forth, from the form of original construction, excepting such changes as were due to ordinary repairs and upkeep.

During the month of March, 1913, a storm of rain occurred throughout the drainage area of the Wabash river and its tributaries, and in other parts of America, which storm, in respect of great precipitation in short time over vast territories, was unprecedented. As a result of said storm the Wabash river was greatly swollen. The rainfall of said storm was so distributed and timed as that the crests of the White and Patoka river floods met and converged above and at Mt. Carmel, Ill., with the crest of the Wabash river flood, so that thereby the Wabash river flood at, above, and particularly below the confluence of the White and Patoka rivers, did on March 30, 1913, rise to an unusual and unexpected height, and said waters did on said day rise at and on the Mt. Carmel gauge to an unprecedented vertical height, viz. a height of 31.1 feet. The valley of the Wabash river at, near, and for miles above Mt. Carmel, and for miles down toward the mouth of said river, was consequently submerged in water to a depth of 31.1 feet greater than was ever before or since known to history or tradition, and the area of such submergence from above Mt. Carmel down to the mouth of said Wabash river was consequently correspondingly and unprecedentedly increased.

When the flood waters arrived at the inter-highland section of railroad, they overflowed, in varying depths, the tops of the railway embankments; but at and near the points of the several openings of bridge and trestle work the track or top surface was not so submerged, and said openings below the track were not completely filled by the passing waters, all for the reason that the water surface at and near said openings was sharply inclined downward in the direction of flow. The bridge and trestle openings, by reason of their inadequacy of size and flowage space, did not and could not, in view of the embankments hereinabove described, permit a substantially free, natural, and unobstructed flow of the waters and currents of the Wabash river, which reached a maximum height of the 30th day of March, 1913. For several days immediately prior to and for several days immediately subsequent to March 30, 1913, the flood plane was so obstructed by said embankments that the waters and currents did not and could not flow in natural and unbroken sheet, in respect of continuity of surface plane, and the said embankments so dammed said descending waters and currents back above said embankments, and so retarded the flow of said descending waters to points below said embankments, that the vertical height of the water surface immediately above said embankments was at times and places of maximum difference 4 feet greater than the vertical height of the water surface immediately below said embankment. At the several openings, except the opening of the Big Four bridge and its trestle approaches, the said differences in height relationships caused the waters and currents to flow through the said openings in volumes and velocities greatly in excess of natural and unobstructed flowage, and with water surface much more sharply inclined downward in the direction of flow than said surface would or could have been inclined under conditions of natural and unobstructed flowage.

Under and through the northwestern end of the opening designated “Summer ditch trestle and bridge,” a large dredged public ditch, known as the Sumner ditch, and draining an extensive area of territory northeast of said Evansville line, since a time long prior to the construction of said Evansville line, has continuously passed...