276 F. 21 | 5th Cir. | 1921
By an indenture made in the year 1912 between the appellant, John D. Clarke, and the Georgia Coast & Piedmont Railroad Company, the former conveyed to the latter a right of way, 200 feet in width, across General’s Island, in McIntosh county,' Ga.. That instrument bound the railroad company to maintain openings through any embankment constructed by it on the right of way acquired, so as to permit the passage of water from one side of such embankment to the other. A purpose of that provision was to insure the flow of water, required in the cultivation of rice, to that portion of the island east of the right of way. By intervention in a suit brought for the foreclosure of a mortgage or deed of trust covering the properties of the railroad company, in which suit receivers were appointed, Clarke, after alleging that the receivers, or their authorized agent, with knowledge of the above-mentioned contract, in doing work upon the railroad under the court’s orders, so filled in openings in the embankment constructed by the railroad company as to prevent the flow of water from one side of such embankment to the other, prayed that he be awarded damages in the sum of $12,978, that for such amount he be allowed a first lien upon the proceeds of the sale of the properties administered by the receivers, and that he—
“be adjudged to bave the right hereafter to place in, through, across, over, and under said embankment such ditches, canals, drains, conduits, passages, and roadways as the contract provides should be made and established where any embankment should be built.”
At the time the intervention was filed the property of the railroad company had been sold under a decree of the court, which gave the purchaser the option to discontinue the operation of the railroad and to take up and sell its rails. When the decree on Clarke’s intervention was rendered, the railroad had been dismantled, as permitted by the terms of the decree of sale.
The evidence disclosed that formerly rice was grown on a considerable part of the island, but that the use of the land for growing rice, or any other kind of crop, was abandoned more than 20 years ago, and has not been resumed. The evidence indicated that the abandonment of the use of the land for growing rice was due to the increased cost of the labor required, and to the difficulty or impossibility of getting laborers willing to undertake the task, which involves constant work in the wet; the laborers having to work in mud and ditches up to their knees. It well may be inferred that the land will continue to be unavailable for rice farming, except in the possible event of changes in conditions making it possible to get the required labor at a cost that would make the growing of rice on the land profitable.
The master made findings of fact which included the following:
“Whatever damage there has been to the market value of the land was occasioned by filling of the canals, ditches, drains, and roadways, and to this extent destroying the usefulness of that portion of the island to the east of the railroad for the culture of rice. The highest number of acres given in this tract is 75’ acres. From the evidence, the highest market value which this*23 land has1, apparently either present or prospective, is for the cultivation of rice. * * * The special master finds that the market value of the land has been reduced and decreased in the sum of íjjáüO.”
The just-quoted findings were not excepted to on the grounds that there was'an absence of evidence to support them, or that they were contrary to the evidence adduced. The court confirmed the findings of the master, and awarded to Clarke $400 damages. In behalf of Clarke it is contended that the court should have awarded to him as damages the amount of the cost of restoring the structure on the right of way to the condition it was in before the openings in the fill or embankment were filled in or closed, which the master found to be the sum of $3,000, but which the appellant’s counsel contends was shown by the evidence to be the sum of $4,682.
The decree is affirmed.