231 F. 217 | E.D. Ark. | 1916
(after stating the facts as above). All the defendants assign as grounds of demurrer that the allegations in the complaint do not state a cause for action, and also that the complaint shows on its face that, if there ever was a cause of action, it is barred by the statute of limitations of the state of Arkansas.
The.general statute of, limitations of the state of Arkansas, upon which the defendant railroad companies rely, is the' three-year statute. Section 5064, Kirby’s Digest of the Statutes of Arkansas.
The statute of limitations which the levee district pleads is that of one year, under the provisions of section 10 of an act of the General Assembly of the state of Arkansas which became a law on February 24, 1905. Session Acts of 1905, p. 152. This act provides:
“All actions for the recovery of damages against any levee or drainage district for the appropriation of land, or the construction or maintenance of either levees or drains, shall be instituted within one year after the construction of such levees or drains, and not thereafter.”
The latest case on that point, which is controlling in this court, is Quinette v. Pullman Co., 229 Fed. 333, - C. C. A. -, decided by the United States Circuit Court of Appeals for the Eighth Circuit on January 5, 1916.
That the act of 1905, limiting the time within which an action may he maintained for damages caused by a levee or drainage district, applies to such consequential damages as are charged in the complaint in the case at bar, was determined in Russell v. Board of Directors Red River Levee District, 110 Ark. 20, 160 S. W. 865. It was there held that:
“An action against a levee board for consequential damages, sustained by-reason of overflowing the adjacent lands, by reason of the construction of the levee, is within the provisions of this act, and must be brought within one year.”
“A demurrer admits only of matters of fact well pleaded, and not conclusions of law. Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 578 [11 Sup. Ct. 650, 35 L. Ed. 278]; Chicot County v. Sherwood, 148 U. S. 529, 536 [13 Sup. Ct. 695, 37 L. Ed. 546].”
The pleader undertakes to state why they are not of a permanent character, by alleging:
“That they require constant care and attention, and prior to the year 1910 they were washed away and broken annually, at many times and places, by the high water of the Mississippi river. That since the year 1910- the enlargements and increases in height have been such that the number of breaks has teen lessened, and the said dikes and embankments and line of levee have become more effective in backing up and confining the said high waters of the Mississippi river; and, since the year 1910, the increases in the elevation of the said high waters, so backed up and confined, over and upon the northern section of the plaintiff city of Memphis, has been more than five feet greater than in any previous high waters of said river. * * * That since the year 1909, and within the last six years, waters of the Mississippi river, so held back and confined by the said dikes, embankments, and line of levees, so constructed, enlarged, and increased in height by the said defendants, as the direct and proximate result of such construction, enlargements, and increases in height thereof, have washed away and broken and totally destroyed, etc.”
That levees and railroad embankments are intended to be permanent requires no extended argument. The fact that when they were first
Aside from these considerations, the complaint shows beyond question that ever since 1909, more than six years before the institution of this action, these levees and embankments were completed, and no reason whatever is stated why the action was not brought within the time prescribed by law.
Was it the duty of these defendants in 1891 to foresee that in 1909 or 1910 a levee board, not then in existence, would build such levees as is alleged in the complaint? Clearly not.
The demurrer to the complaint of all the defendants is sustained.