Chicago, B. & Q. R. v. Board of Sup'rsChicago, B. & Q. R. v. Board of Sup'rs
Lead Opinion
(after stating the facts as above). An important question of fact at the trial was whether the drain followed a water course at its point of intersection with plaintiff’s roads. There are two creeks arising in the eastern bluffs bordering on the valley, and flowing southwesterly, and finally discharging into Chariton river. Both streams have well-defined channels at their upper course, and also in portions of the valley, but at other points' their banks disappear and they become lakes or bayous. The northermost stream, known as “L,ooust Creek,” enters the valley north of the north line of plaintiffs road, and its waters, together with the surface waters of the eastern part of the valley, pass under the north branch at the eastern trestle above mentioned, and at the point where that branch is intersected by the drain. Between the two branches this stream is joined by another creek similar in character and known as “Indian Creek,” flowing in from the east. The combined waters of these streams pass under the south branch of the plaintiff’s road at the eastern trestle. The findings of the court touching the character of these streams, as at first made, are ambiguous. It appears, however, from the recitation in the court’s judgment that these findings were prepared by counsel for the railroad company, and that later additional findings were prepared by counsel for the board of supervisors, and signed by the court for the purpose of modifying the earlier findings. They show upon their face that their main object was to make plain the character of these water courses. The findings all seem to have been
What constitutes a water course is a matter of local law as to which federal courts should follow the decisions of the state. The Supreme Court of Iowa, in the case of Hull v. Marker,
“To constitute a natural water course it is not necessary that the flow of water through it should have been suflicient to wear out a channel or canal having definitely well-marked sides and banks. If the surface water in fact uniformly and habitually flows off over a given course, having reasonable limits as to the width, the line of its flow is, within the meaning of the law applicable to the discharge of surface water, a water course.”
While there is some conflict in the' decisions of the courts of the several states on the subject, this, in our judgment, is a sensible view of the term as applied to public drains. To require such ditches to follow the line of streams having well-defined banks, would defeat their principal object. Their purpose is to drain lowlands which are not drained by streams having well-defined banks. Their best course lies along the line of swales and bayous over which surfa.ce and overflow water passes, but does not move with sufficient rapidity to render the land fit for agriculture. The finding of the trial court is amply supported by the evidence, and brings these streams well within the meaning of a water course, as defined by the highest court of the state.
Such being the case our duty is plain. The Supreme Court of Iowa, in Mason City & Ft. Dodge R. R. Co. v. Board of Supervisors,
We do not, however, in-the present case, think that plaintiff’s measure of damages would be different if there was no water course at the point where the ditch intersects its lines. The fact of such water course is brought prominently forward in the above decisions of the Supreme Court of Iowa, and in the case of Chicago, Burlington & Quincy R. R. Co. v. People,
Nevertheless, we do not think this feature a controlling factor in those. decisions. The duty of the railroad to conform its roadbed to the requirement of such public easements as highways and ditches- is an incident of its right to construct and: maintain its
It will be profitable to refer to some of these authorities. In the late case of State v. St. Paul, Minneapolis & Manitoba R. R. Co.,
“When the franchise was granted to the railroad company to construct and operate its railroad, it was not contemplated either by it or by the state that no more public highways should be laid out which would increase the number of places where the ordinary police regulations would have to be complied with by the railroad company to its inconvenience and expense; on the contrary, it must have been understood and contemplated, .especially in a new state rapidly advancing in population and in the development of its resources, where new towns were springing up and new avenues for travel and traffic were becoming necessary, that new streets and roads would and must be laid out, and that many of these would necessarily cross existing railroad lines; and we cannot resist the conclusion that, so far as concerns the matter now under consideration, the charter of the relator was taken subject to the right of the state to impose this duty, whenever by reason of the establishing of new highways it should become necessary, and hence the relator is not entitled to compensation for obedience to this requirement.”
This decision was affirmed by the Supreme Court,
The case of New Orleans Gas Co. v. Drainage Commissioners,
t “When it laid its'pipes it was at the risk that they might at some future time be disturbed when the city might require for a necessary public use that changes in location be made.”
And in conclusion it is again said:
“In the exercise of the police power of the state for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria.” See, also, Portland R. R. Co. v. Inhabitants of Deering,78 Me. 61 ,2 Atl. 670 ,57 Am. Rep. 784 .
The subject is examined with great learning by the Supreme Court in the case of Chicago, Burlington & Quincy R. R. Co. v. Chicago,
“The expense that will be incurred by the railroad company in erecting gates, planking, the crossing and maintaining a flagman in order that its road may be safely operated — even if all that should be required — necessarily result from the maintenance of a public highway under legislative sanction and must be deemed to. have been taken by the company into account when it accepted the privileges granted by the state.”
To the same effect is New York & New England R. R. Co. v. Bristol,
The case of In re Selectmen of Norwood,
“The railroad can properly be charged with expenses incurred in adapting the public ways and the railroads to each other in such a -manner as best to promote the safety and convenience of the people.”
The Supreme Court of Indiana, in Lake Erie & Western R. R. Co. v. Shelley,
“It is clear from our statute and the cases cited that a railroad company acquires its right of way subject to the right of the state to extend public highways and streets across the same, and subject to the condition that it must place, keep, and maintain all highway crossings regardless of whether the highway was established before or after the road was built, in such condition as not unnecessarily to impair the usefulness of the highway and so as not to interfere with the free use thereof and in such a manner as to afford security for life and property. It is evident that in proceedings to establish a public highway across a railway track the railroad company is not entitled to any damages for the cost and expense of complying with the requirement of laws passed in the exercise of the police power, and that, when the highway crosses the right of way at a point where the company has only a track or switch, no question can justly arise as to any impairment of its franchise by such taking for under such circumstances both the use as a highway and as a railway can stand together, and do not interfere with each other. The plaintiff in error took its charter subject to the power of the state to provide for the safety of the public, in so far as the safety of the lives and persons of the people were involved in the operation of the railroad. The company laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to the public safety.” See, also, C., M. & St. P. Ry. Co. v. Milwaukee,97 Wis. 418 ,72 N. W. 1119 ; Gulf, C. & S. F. R. R. Co. v. Milan Co.,90 Tex. 355 ,38 S. W. 747 ; City of Harriman v. Southern Ry.,111 Tenn. 538 ,82 S. W. 213 .
These crossing cases come much nearer to violating the constitutional rights of railroads than does the uncompensated intersection of a public drain. They compel the railroad not only to maintain its road over the highway, but also to construct, often at great expense, a safe passageway for the sole use of the traveling public.
If the drain here involved had existed when the railroads were constructed, the company would have been compelled to,bear the expense of building a proper bridge over the ditch. Why should it not do so now ? By simply constructing its line first, did the company forever escape this burden, and acquire a vested right that no future public improvement should come that way except at the charge of rebuilding and maintaining the railroad at the place of intersection? The construction of the ditch did not and could not .“take” a strip of the railroad. Notwithstanding the easement of the ditch, the company continued in the right to maintain and operate its road. All the public required was that the company should carry its road over the ditch at its own expense and not at the expense of the public. To hold that the public must bear the expense of constructing, the bridges in question is not to compel them to pay for something which they have taken in constructing the ditch, but is to impose upon them the burden of constructing and maintaining the plaintiff’s roads at 'the point of intersection. A .more reasonable. view is- that declared by the courts,
The claim, of the plaintiff in this case is peculiarly devoid of merit. It has" maintained for years wooden trestles at the points where its lines are intersected by the drain. These structures are temporary and perishable. In their place .it demands that permanent bridges, with spans and concrete abutments, shall be built and maintained at .public expense across the drain. That would not be compensation for injury to private property, but simple enrichment of the company out of the public treasury.
The judgment is clearly right, and should be affirmed.
Dissenting Opinion
(dissenting). The Railroad Company had constructed a bridge over the Chariton river for each of its lines ■which was sufficient in size and character to conduct each of its railroads over the channel and the waters of- that stream. The defendant constructed a ditch which tapped the eastern bank of that river above these bridges, and conducted a part, if not all, of its waters across , the railroads at places where there were trestles but no bridges, and thereby made it necessary for the railroad company to construct two new bridges, at the places where the new course of the river crossed the railroads, at an expense of about $40,000. Because, while the owner of a higher.tract of land has the right.to have the surface water naturally coming upon his premises pass off by the' natural drains through or over lower or servient lands, he has no right to open or remove natural barriers and let bn to or over lower or servient lands waters which would not naturally flow there (Dayton v. Rutherford,
On Petition of Plaintiff in Error to Modify Opinion.
Plaintiff in error, the Chicago, Burlington & Quincy Railroad Company, moves the court to strike out the following language from the opinion filed in this case:
“We do not, however, in the present case, think that plaintiffs measure of damages would be different if there was no water course at the point where tho ditch intersects its lines. The fact of such water course is brought prominently forward in the above decisions of the Supreme Court of Iowa, and in the case of Chicago, Burlington & Quincy R. R. Ch. v. People, 200 TJ. S. 561, 26 Sup. Ct. 341,50 L. Ed. 598 . ⅜ * * Nevertheless we do not think this feature a controlling factor in those decisions.”
The motion recites that in a previous part of the opinion the court had already found that the drain followed the line of a water course, and that under Chicago, Burlington & Quincy Railroad Company v. People,
We first observetthat, if the motion is well founded, it should be extended, not only to the language above quoted, but to all subsequent portions of the opinion; for the remainder of the opinion is simply a discussion of authorities in support of the proposition to which plaintiff objects. '
A consideration of the controlling issue in the cause, we think, will show the motion to be without merit. Plaintiff in error bases its claim to recover the expense of constructing and maintaining a permanent bridge over the drain upon the ground that such expense constitutes, within the law of eminent domain, damages for property taken and injured by the opening of the drain across its right of way. If this claim is well founded, any statutes of the state of Iowa which attempt to deprive the company of the right to recover are in direct violation of both the federal and state Constitutions requiring just compensation to he made for property taken or damaged for a public use and forbidding the deprivation of property without due process of law. We were of the opinion, therefore, that the statutes of Iowa, to which much, attention is given in the briefs, were not important in the decision of the case. If plaintiff’s contention was sound as to the nature of its claim, the statutes were void. - If, bn the other hand; the expense of building and maintaining the bridge did not constitute “damages,” within the meaning of that term as used in the law of eminent domain, plaintiff’s claim was clearly without merit. The greater part,of the oral argument and printed brief of learned counsel
The'defendant resisted.liability upon several grounds: (1) The statutes of Iowa, which in our judgment, as already explained, were not important. (2) The claim that the ditch followed a water course, which gave to the public an easement for the construction of a public drain. (3) That the expense of constructing and maintaining the bridge over the- drain did not constitute damages for property taken or injured, within the law of eminent domain.. This latter point is stated at page 17 of the printed brief of defendant in error, though it is not fully discussed. Clearly any matter of fact or of law thus presented, which would defeat the claim of plaintiff in error, is germane to the issue presented by the cause. It is not the practice of courts to rest their decisions upon a single ground, or upon the narrowest possible basis of fact. On the contrary, every consideration which is directly controlling of the actual issue tendered is a legitimate ratio decidendi-This is strikingly illustrated by the decision of the Supreme Court in Union Pacific Railroad Co. v. Mason City & Fort Dodge Railroad Co.,
If the drain followed a water course, the public had a legal1 right or easement to use it, and the plaintiff could base no claim for damages upon such a use. On the other hand, if the expense of building and maintaining the bridge was only an indirect and incidental result of a public improvement for the general welfare (200 U. S., bottom page 593, 26 Sup. Ct., page 341,
It is also true that there are features which distinguish the present case on the facts from the case of Chicago, Burlington & Quincy R. R. Co. v. People,
It seems to us entirely plain that the second ground of the decision is directly responsive to the claim asserted by plaintiff, and that the cause could .not properly be disposed of without a consideration of the defense which it discusses.
Our attention is also called by the motion to a statute which was passed in Iowa April 2, 1907, more than two years after the drain was established, and at least in part constructed. That statute requires drains in crossing the right of way of a railroad to be located “at the place of the natural water way across such right of way.” Raws 1907, c. 95. Throughout the brief of plaintiff in error in this case it is urged that this statute is not applicable to the drain here in question. We accepted that contention, without expressly deciding the point. We are entirely clear that the section to which our attention is now called could have no application to a drain which had previously been established and in part constructed before the statute was passed.
We, of course, recognize the fact that the entire matter of the location of drains is subject to the control of the Legislature, and there is nothing in the opinion which could throw any doubt upon the rights of railroads under the statute referred to as to drains established after the law became effective.
The motion must be denied.