57 F. 441 | U.S. Circuit Court for the District of Indiana | 1893
The intervening petitioners Hanes & Porch claim that they were damaged by a flood which, by reason of an insufficient culvert, caused such an accumulation of water as to submerge and injure their flour mill and property situated on the up-stream side of the railway. The intervening petitioner A. R Colburn claims to have been damaged by the insufficiency of a culvert under the railway, which caused such an accumulation of water as to wash away the embankment, and to damage. and destroy his lumber and lumber yard situated on the down-stream side of the railway. These petitions were referred to the master to hear the evidence, and to report his findings of fact and conclusions of law thereon. The master, after hearing the evidence and the arguments of counsel, filed his report containing his findings of fact and conclusions of law thereon, and recommending that both claims be disallowed.
The facts found and reported are, in substance, as- follows: The embankment and culvert were built by the Toledo, Wabash & Western Railway Company in 1855 or 1856, where the railway crosses a small stream called the “Fall Branch,” which runs through the town of Williamsport, Ind. The embankment is about 20 feet high above the bed of the stream. The culvert is arched, and built of stone, in a substantial manner. The stream is dry during the summer, when there are no rains. In times of heavy rains it discharges a good deal of water, draining several square miles of rolling land. Hanes & Porch are the owners of a mill on the west side of the railway. Colburn owned a lumber yard, which was on the west branch of Pall branch, east of the railway, and under its
During 3(5 years that have elapsed since the building of the embankment and culvert in question, the waters of Fall branch have been backed up by the embankment on two occasions in such a way as to inflict serious damage. On several occasions the capacity of the culvert has been overtaxed for a short time, but, with the exceptions of the floods in May, 188(5, and in July, 1888, no serious damage was done. While there is some conflict in the evidence, the receiver has shown by a clear preponderance of the evidence that the flood of May, 1886, following in the path of a cyclone of the day previous, and the flood of July, 1888, resulted from unusual, extraordinary, and unprecedented rainfalls. The fact that the interveners located the mill where they did 30 years after the railway embankment and culvert were built, with full knowledge, or with abundant opportunities for knowing, the extent of country drained by Fall branch, and the effect of ordinarily heavy rains upon it, shows that they at least supposed then, as the builders of the railway supposed, that the culvert was sufficient. Upon these facts the master found and reported that the receiver was not liable for the damages suffered by the interveners Hanes & Porch in May, 1886, and in July, .1888, nor for the damages sustained by the Intervener Colburn in July, 1888.
To this report and finding, the interveners Hanes & Porch filed exceptions ¡is follows: (1) The master has not correctly recited in his report the facts established by the evidence he reports, wherein he says that “during 36 years since the building of the em
Counsel for the receiver insist that the exceptions are not sufficiently formal and specific to authorize or require the court to review the findings of fact and conclusions of law reported by the master.
In my opinion, the exceptions are sufficient in form and substance to present for review the findings of fact and conclusions of law contained in the master’s report. The report is accompanied by all the evidence on which the findings of the master are based for the very purpose of enabling the court to re-examine the questions of fact, as well as of law, involved in the case. In Foster v. Goddard, 1 Black, 506, where the exceptions were certainly no more formal and precise than those filed in this case, the court held them sufficient to bring up for examination all questions of fact and law arising upon the report of the master.. The court says:
“All that is necessary is that the exception should distinctly point out the finding and conclusion of the master which it seeks to reverse. Having done so, it brings up for examination all questions of fact and law arising from the report of the master relative to that subject. The exceptions in this case are sufficiently full. They are in accordance with the experience of each member of the court in the administration of equity jurisprudence elsewhere.”
It is contended by counsel for the exceptants that the finding of the master that the injuries complained of resulted from unusual, extraordinary, and unprecedented rainfalls, without negligence on the part of the railway company or its receiver, is contrary to the evidence. This contention is met by counsel fpr the receiver with the assertion that the evidence touching the character of the rainfalls is conflicting, and in case of such conflict that the court cannot, or rather ought not to, review the evidence, and find the fact otherwise than reported by the master, even if the court should be of the opinion that the master’s finding was contrary to the clear weight of the evidence. The conclusions of the master, depending on the weighing of conflicting testimony, have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake on Ms part. Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. Rep. 177; Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. Rep. 894; Paddock v. Insurance Co., 104 Mass. 521; Richards v. Todd, 127 Mass. 167. The finding of facts by the master will be regarded as prima facie correct, and will not be set aside or modified unless it clearly appears from the evidence reported that there has been a material error or mistake made by him. Medsker v. Bonebrake, 108 U. S. 66, 2 Sup. Ct. Rep. 351. The finding need not be wholly unsupported by the evidence to justify the court in modifying or setting aside his report. If the great preponderance of the evidence is in conflict with his finding, it ought not to be accepted by the court as binding upon it. ITis report, however, ought not to be modified or set aside for light or trivial reasons, nor unless, upon a careful review of the testimony, the court feels a clear and abiding conviction that some prejudicial error or mirtake has been committed. After a careful study of the testimony, I am in doubt whether the master ought to have found that the rainfalls and floods in question were unprecedented, yet I do not feel such a clear and abiding conviction that he has fallen into error as would justify me in modifying or setting aside his report. He saw the witnesses face to face, he heard them testify, and he had an opportunity to form a more accurate judgment than I can from the testimony reported of their intelligence and candor, and their knowledge of the matters about which they testified. The master’s finding that the rainfalls and floods resulting in the damages complained of were unusual and extraordinary is unquestioned.
It is, however, insisted that the receiver is responsible for damages from floods occasioned by unusual and extraordinary rainfalls, because they might have been foreseen and guarded against by the exercise of ordinary and reasonable foresight, carp, and skill in the construction of a sufficient culvert and embankment.
“It is clearly proved that for three or four days before the bursting of the tanks there had been heavy rains, and for seventeen or eighteen hours before the accident there was a tremendous downpour of rain. Some of the witnesses said' that they had not known such a fall of rain in ■ twenty*447 years, and the plaintiff's third witness admitted from the time the breaches occurred until the Sunday before his examination, he had never seen such a downpour for a period of nearly live years.”
Oil this state of facts it was held to have been such an extraordinary ilood that tlie law would not charge the zemindar with negligence in failing to foresee and guard against it.
In the case of Rylands v. Fletcher, L. R. 3 H. L. 330, referred to, supra, the plaintiffs, owners of a mine, sued for damages tlie defendants, owners of some adjacent land, who had constructed a reservoir on their land for the purpose of working a mill, from which reservoir water flowed through disused mining works into tlie plaintiffs’ mint', and hooded it. It was held by the exchequer chamber and by tbe house of lords that the plaintiff's were entitled to damages against, the defendant. The principle on which the judgment was rested is thus stated by Lord Oran worth:
“If a person brings and accumulates on bis lánd anything, which, if It should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precaution ho may have taken to prevent the damage; and the doctrine is founded in good sense, for when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer. He is bound ‘sic uti suo ut non laedat alienum.’ ”
As applied to water, the doctrine of this case has not passed unchallenged. Cooley. J., in Upjohn v. Board, 46 Mich. 542, 549, 9 N. W. Rep. 845. pointedly observes:
“If withdrawing the water from one’s well by an excavation on adjoining lands will give no right of action, it is difficult to understand how corrapiing ils wafers by a proper use of the adjoining premises can be actionable, when there is no actual intent to injure and no negligence. The one act destroys the well, and the other does no more; the injury is the same in kind and degree in the two cases.”
But, in any event, the principle that a man, in exercising a right which belongs to him, may he liable, without negligence, for an injury done to another person, has been held inapplicable to rights conferred by .statute. This distinction was acted upon in Vaughan v. Railway Co., 5 Hurl. & N. 679, where it was held by the exchequer chamber that a railway company was not responsible for damage from fire kindled by sparks from its locomotive engine, in the absence of negligence, because it was authorized to use locomotive engine's by statute. Chief Justice Coekburn observes:
“Whore the legislature has sanctioned and authorized the use of a particular thing, and it is used for tlie purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the legislature carries wifli it this consequence: that, if damages result from the use of such a filing, independently of negligence, the person using it is not responsible.”
On the same principle, in the case of Blyth v. Water Works Co., 25 Law J. Exeh. 212, it was decided that a waterworks company laying down pipes by a statutory power was not liable for damages occasioned byr water escaping in consequence of a Are plug being forced out of its place by a frost of unusual severity. On the other hand, in Jones v. Railway Co., L. R. 3 Q. B. 733, it was held that a
The rule is perfectly well settled in this country that the owner of a dam or embankment must use ordinary and reasonable foresight, care, and skill in so constructing and maintaining it that it will not be the means of injuring another, either above or below, by throwing the water back, or being incapable of resisting it in times of usual, ordinary, and expected floods; but his liability extends no further, and he is not held responsible for inevitable accidents, nor for injuries occasioned by extraordinary floods, which could not be anticipated or guarded against by the exercise of ordinary and reasonable foresight, care, and skill. Lapham v. Curtis, 5 Vt. 371; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9; Bell v. McClintock, 9 Watts, 119; Navigation Co. v. Coon, 6 Pa. St. 379; Lacy v. Arnett, 33 Pa. St. 169; Casebeer v. Mowry, 55 Pa. St. 419; Knoll v. Light, 76 Pa. St. 268; Mayor, etc., v. Bailey, 2 Denio, 433; Inhabitants of Shrewsbury v. Smith, 12 Cush. 177; Inhabitants of Wendell v. Pratt, 12 Allen, 464; Smith v. Canal Co., 2 Allen, 355; Gray v. Harris, 107 Mass. 492; Inhabitants of China v. Southwick, 12 Me. 238; Hoffman v. Water Co., 10 Cal. 413; Everett v. Tunnel Co., 23 Cal. 225; Proctor v. Jennings, 6 Nev. 83; Ames v. Manufacturing Co., 27 Minn. 245, 6 N. W. Rep. 787; Hydraulic Co. v. Boyer, 67 Ind. 236.
There is no liability when a suitable culvert or embankment, which has been properly constructed and kept in repair, breaks, or proves otherwise insufficient, and causes injury to lands above or below, because of an extraordinary flood or other act of God, or when, in consequence of great and exceptional floods, without concurring negligence, it injures a landowner above or below, unless liability may arise from the terms of a statute by which the work is expressly authorized. Livingston v. Adams, 8 Cow. 175; Noyes v. Shepherd, 30 Me. 173; Pollett v. Long, 56 N. Y. 200; Tenney v. Ditch Co., 7 Cal. 335; Campbell v. Mining Co., 35 Cal. 683; Wolf v. Water Co., 10 Cal. 541; Frye v. Moor, 53 Me. 583; Fraler v. Water Co., 12 Cal. 555; Weiderkind v. Water Co., 65 Cal. 431, 4 Pac. Rep. 415; Wright v. Holbrook, 52 N. H. 120; Washburn v. Gilman, 64 Me. 163; McArthur v. Canal Co., 34 Wis. 139. The owner of a culvert or embankment erected on his own land is responsible for all injury done by it to the land or property of his neighbor arising from the usual and ordinary and expected freshets occurring in the stream; but he is not responsible for damage occasioned by those great and sudden visitations of wind or water or other convulsions of nature, whose occurrence cannot be anticipated, and whose devastating force cannot be guarded against by the exercise of ordinary foresight, care, and skill. McCoy v. Danley, 20 Pa. St. 85, 57 Amer. Dec. 680, and note; Rodgers v. Railroad Co., 67 Cal. 607, 8 Pac.
But it is said if the embankment had not been raised, or if the culvert had been constructed of the same width as the low land through which the stream flowed, the rainfall and consequent flood might not have occasioned the damage complained of. The embankment and culvert may have been one of a series of causes to which the injury may have been indirectly ascribed. Their connection, however, was fortuitous, and resulted from an extraordinary and unusual state of things. Neither the rainfall nor the cyclone nor the cloud-burst was caused by the embankment or culvert. These had continued unimpaired without causing serious injury for more than 30 years preceding the accident. Such tremendous and extraordinary downpours of rain as resulted in ■the washing away of the embankment, with the consequent damage, could not have been foreseen or guarded against by the exercise of ordinary foresight, care, and skill. It would be carrying the doctrine of liability to a most unreasonable length to run up a succession of causes, and hold each responsible for what followed. especially where the connection was casual and unexpected, and where that which is attempted to be charged was in itself innocent and lawful. The law affords no encouragement to speculations of this sort. It rests upon the maxim, “causa próxima non remota spectatur.”
Anoiher reason is urged why judgment ought to be entered for the receiver, as recommended by the master, even if his finding should be held to be erroneous on the question hereinbefore dis
The exceptions will therefore he overruled, and judgment will he entered on the master’s report in favor of the receiver and against the exceptants for costs.