Chesapeake & Ohio Railway Co. v. Meriwether

Whittle, J.,

delivered the opinion of the court.

In the trial court the positions of the parties were reversed; defendants in error were plaintiffs and the plaintiff in error defendant. The case in outline is as follows:

The alleged cause of action is that the defendant, by changing the location of its roadbed and track and building an embankment or fill along its right of way on James river in Bedford county, unlawfully narrowed the channel and lessened the space for the flow of the stream in high water and changed its natural course, and thereby, during a freshet in the spring of 1913, flooded plaintiffs’ farm on the opposite side of the river in Amherst county and its island in the river and inflicted the injuries of which they complain. The case was tried upon that theory and resulted in a verdict for the plaintiffs for $1,400, upon which the. judgment under review was rendered.

Prior to the year 1910, the defendant’s track at the point in question was located at the foot of a bluff on a sharp curve, to avoid which, during that year, the railway company relocated its tracks nearer the bank of the river for the distance of 1,750 feet, in part upon the embankment of the tow-path of the old James River and Kanawha Canal Company, to whose property rights the defendant succeeded. This old tow-path was twelve feet above low water mark, and the new embankment was raised to the height of twenty-five feet from the' same level.

Admittedly, the change of location and increased elevation of the embankment exerted no influence whatever upon the flow of the river at ordinary stage, since the base of the latter was ten feet distant from low water mark and the intervening space was traversed by a wagon road. The low-grounds on plaintiffs’ farm were only six or seven feet above low water mark.

The evidence, we think, indisputably places the freshet of 1913 in the class of “accidental or extraordinary floods,” such as from the observation and experience of men of ordinary prudence familiar with the river would not reasonably be expected to occur. In the memory of the oldest residents in that vicinity there had only been two other freshets that approximated the flood of 1913 in magnitude, namely, the “great freshets” of 1870 and 1877; and all of them were characterized as “extraordinarily high freshets,” the highest that had ever been seen in the river. The records of the water power department of the railway company also showed that the height of the water at Clifton Forge in the 1913 flood was 28.4 feet, and that it was 25 feet at the point of defendant’s embankment and 24.6 feet at Lynchburg, eight miles further east. These facts in the opinion of the engineer at the head of the water department showed “a tremendous accumulation of water at Clifton Forge which caused that phenomenal rise above what had been there before, and in consequence of which the water came down in a great volume at high speed between those two points, much more so than had been at previous freshets.” It was also in evidence that the freshet of 1913 rose faster, came quicker from the mountains, rose more rapidly, was swifter in flow and quicker in fall than was the case with its two great predecessors.

In these circumstances, confining our decision to such injury as was inflicted upon plaintiffs’ land by reason of the construction of the embankment in its effect, if any there was, on the flood of. 1913, we are of opinion that it imposed no liability on the defendant.

The case of Cubbins v. Mississippi River Commission, decided by the United States Supreme Court at October term, 1915, Adv. Op., July 15, 1916, p. 671, 241 U. S. 351, 36 S. Ct. 671, 60 L. Ed. 1041, is decisive of the questions here involved. Mr. Chief Justice White, delivering the opinion of the court in that case (after stating the general rule, “that the free flow of water in rivers was secured from undue interruption, and the respective riparian proprietors, in consequence of their right to enjoy the same, were protected from undue interference or burden created by obstructions to the flow, by deflections in its course, or any .other act limiting the right to enjoy the flow, or causing additional burdens by changing it,”) observes: “But while this was universally true, a limitation to the rule was also universally recognized by which individuals, in case of accidental or extraordinary floods, were entitled to erect such works as would protect them from the consequences of the flood by restraining the same, and that no other riparian owner was entitled to complain of such action upon the ground of injury inflicted thereby, because all, as the result of the accidental and extraordinary condition, were entitled to the enjoyment of the common right to construct works for their own protection.” The learned Chief Justice maintains these principles by reason and authority, showing that the general rule and its limitation were recognized by the Roman law, the Code Napoleon, the law of Scotland and England, and also of this country. Although in this country, he remarks, “it is true to say that much contrariety and confusion exist in the adjudged cases as to when it is applicable, some cases extending the rule so far as to virtually render the limitation inoperative, others extending the limitation to such a degree as really to cause it to abrogate the rule itself. But in- these differences and contrarieties it- is not at all necessary to enter, since there is no decided case, whatever may be the differences as to the application of the limitation, holding that it does not exist, and when in fact the very statement of the general rule requires it to be determined whether that rule as correctly stated would include situations which the limitation, if recognized, would exclude.”

The evidence, as' we view it, plainly brings this case within the influence and protection of the limitation to the general rule. The railway company was within its rights in changing the location of its tracks from one part of its right of way to another to escape the danger incident to a “14 per cent curve,” and in constructing its embankment sufficiently high to protect its roadbed and other property from injury by accidental and extraordinary floods..

It follows from what we have said that the judgment of the court below is erroneous and must be reversed and the case remanded for further proceedings not inconsistent with this opinion.