23 F.2d 492 | 5th Cir. | 1928
In 1923 the Red river cut a new channel across a bend in the old channel and washed away about 100 acres of plaintiffs’ land, that lay just below and on the opposite side of the river from the new channel. Plaintiffs alleged that defendants cut a ditch across the bend and thus caused the river to change its course, that the river was navigable at the point where the course of its channel was changed, and that defendants acted without authority from the Secretary of War, in violation of section 10 of the Act of Congress of March 3, 1899, 30 -Stat. 1151 (33 USCA § 403; U. S. Comp. St. §' 9910).
The principal assignment of error is that the trial court erred in refusing'to direct a verdict in favor of defendants; but it is without merit, because the evidence on the issues involved was in substantial conflict. A charge given by the court is also assigned as error, but it was not excepted to, and so is not properly presented for consideration.. It is also contended that evidence admitted over objection as to the navigability of the river was immaterial, and should have been excluded. Although plaintiffs might have relied upon a tort at common law, they chose not to do.so, hut to allege that the river was navigable, so as to show that the act complained of was unlawful, in that it was in violation of a positive statute. A good cause of action was alleged. 26 R. C. L. 757. And the evidence objected to was necessary to sustain it.
Error is not made to appear by any of the assignments, and the judgment is affirmed.