128 Va. 551 | Va. | 1920
delivered the opinion of the court.
These are two cases that by agreement of parties were heard and determined together, the same jury rendering a verdict in each case. The plaintiffs (defendants in error in this court), severally sued the Southern Railway Company for damages caused them by the backed up flood waters of the Hardware river. The backing up- of these waters was alleged to be due to the inadequacy of a culvert of the defendant company, constructed across the said water course. The damages complained of occurred in August, 1917, following a very heavy rain on the watershed of the Hardware, which submerged a portion of the lands of the
The plaintiffs severally brought action in the Circuit Court of Albemarle county, claiming' damages for injury done to the growing crops, and “damage and depreciation in value” of their respective farms.
The defendant company moved the court to make Walker D. Hines, Director-General of Railroads, a co-defendant with the Southern Railway Company in the two causes. The plaintiffs offering no objection, this was accordingly done, and as stated, supra, by agreement, the causes were ordered to be tried together. Thereupon, after the disposition of certain preliminary questions, a jury was duly sworn, and having heard the evidence and arguments of counsel, and being instructed as to the law by the court, returned a verdict in favor of C. B. White for $400, in full of “his damage past and future,” and one for Ella Bowden for “her damage past and future,” in the sum of $3,000. The defendants moved the court to set aside these verdicts on various grounds. These motions were overruled. Thereupon the defendants applied for and secured from one of the judges of this court writs of error and supersedeas in the said cases.
The pertinent facts necessary to be stated for the proper understanding and disposition of the errors assigned are as follows: The Hardware river is a small stream in Albemarle county flowing across the line of the Southern Railway Company. At the point of intersection the river, in a general way, is flowing from the west to the east. The general course of the railway line is north and south. The Hardware river is composed of two streams which unite a short distance west of the line of the railway. These two larger streams have numerous small affluents, dnd drain an area estimated by the railway company, upon the basis of the maps prepared by the United States Government, to contain approximately 12,000 acres.
The northern branch of the Hardware river flows through the lands of Mrs. Ella Bowden, and is spoken of as North Hardware creek. The southern branch, described in the declarations as Cross Roads creek, flows through the lands of C. B. White. The Hardware river, as stated, supra, is formed by the junction of the above streams. Formerly the railroad crossed the Hardware river on a wide, high trestle, or bridge. The petition of the plaintiffs in error describes this trestle as follows: “The span of this trestle from back wall to back wall was 105 féet; the distance between the masonry to the two abutments was ninety-three feet.”
In the year 1915, the Southern Railway Company undertook the construction of a double track road through Albemarle county. At the point where the road crossed the Hardware river, it was decided to build an arch, or culvert, over that stream. This culvert is described by the engineer for the road as a “three-centered arch, practically egg shaped,” and is stated to be “admittedly the best0for carrying flowing streams.” The dimensions of the culvert are, width thirty feet, and height twenty-five and one-half feet in the clear. On each side of the culvert are solid fills, or embankments of earth, the effect of which is to constrain the waters of the Hardware at all times to pass through the culvert. The opening under the trestle which preceded the culvert was a very wide one, so that in time of freshets, if the Hardware river overflowed its banks, the rising waters spread out to the left and right and flowed off without interruption. The very positive testimony of the witnesses is that before the construction of the culvert the Hardware often overflowed its banks to the west of the railroad, but that there was no backwater.
The principle in this connection is stated in American Locomotive Co. v. Hoffman, 105 Va. 349, 54 S. E. 27, 6 L. R. A. (N. S.) 252, 8 Ann. Cas. 773: “As a general rule, the upper riparian owner, has, as against the lower riparian owner, the right to have the water course flow from his land according to nature, and a lower tenant has no right to pen back or obstruct the flow of the water so as to flood the lands of the upper owners, or by raising the level of the water in the channel interfere with the drainage of the upper land, or to subtract from the water power of the upper owner. Where bridges, culverts, etc., are constructed across water courses by railroad companies, municipalities, or other corporations, or by individuals, due care must be taken not to obstruct the natural flow, including that at seasons of either low or usual high water, and the failure to do so will render the offender liable for injuries to land owners caused by the penning back of the waters and the overflow of their lands. But such structures need not be constructed “in such a manner as to permit the unobstructed flow of the water course in times of unprecedented and extraordinary freshets.”
The contention of the company is that it did use due care “to construct the culvert, and had so constructed it as not to obstruct such flows of flood waters as might reasonably be expected to occasionally occur in the Hardware river; and that the company was not liable for the damage done by the flood in August, 1917, because that damage was occasioned by a great and sudden visitation of water, whose
Speaking of the culvert and its adequacy, Mr. Abernathy, engineer for the company, says that “the question of figuring an opening to carry a given drainage is a technical question, not a guess. It is an engineering question.” Further with reference to the proper size of the culvert over the Hardware river, he says: “Assuming that the area which the Government map showed was correct — 12,000 acres — and we checked these maps in hundreds of places, and applying the formula as recognized by engineering authorities, and at the same time assuming the worst possible drainage conditions, with maximum rainfall, it will figure out that the area necessary to carry this stream — I have the figures in my pocket — the area necessary is 440 square feet.”
The actual area of the culvert through which water can pass unobstructed is 509 square feet, or fifteen per cent, in excess of the requirement, and more than sufficient according to the witness (Abernathy) for a drainage of 15,000 acres, which according to the formula used requires an opening containing 488 square feet. This witness, however, declined to state that the new culvert carried off the water as adequately as the opening under the old bridge or trestle.
“Q. Mr. Abernathy, do I understand from your evidence that you tell the jury that the new culvert carries off the water as adequately as the old bridge did?
“A. I didn’t make that statement.
“Q. I would like you to make a statement on that point?
“A. I think I made it very clear to Mr. Gordon, in discussing that question, that after the water reaches a certain elevation under the old conditions, the area was increased, and under the new conditions the area is decreased.
*558 “Juror:. In other words, the old construction, the more water it had the more passway; and under the new construction the more water, the less passway.
“A. In area of square feet that is true.”
Again this witness says: “As the water rises now, the passage gets smaller, and before as the water rose, the passage got larger.”
The contention of the company and the statements of its witnesses present squarely the issue of the adequacy or sufficiency of the culvert to carry off the waters of the Hardware under such rains as could be reasonably anticipated in that neighborhood. However closely and accurately the engineers of the company may have followed formula in the construction of the culvert over the Hardware river, the fact remains that in August, 1917, this culvert did not carry off as formerly the flood waters of the river, but that these waters were backed upon the lands of the complainants, doing great damage to the growing crops.
In this connection the plaintiff, White, who lives on Cross Roads creek, the southern branch of the Hardware, says: “Well the creek didn’t hardly get out of the banks, and the water backed in on me there. We didn’t have very much rain, any more than usual. When I went down there at the lower end of my bottom, you couldn’t see a stalk of corn hardly at all; just now and then a tassel, and it was backing up over nearly half of my bottom land, over top of the corn.”
Mr. Bowden, a witness for the plaintiff, Ella Bowden, makes the following statement of the extent of the submergence on Mrs. Bowden’s land: “I will say this to the jury, that I had thirty acres of land on these bottoms, and in the land that comes down from the highlands, and as much as thirty acres of that land had water standing on it; as much as twenty acres was in a flooded condition; as much as thirteen acres of that land I attribute to the extraordinary flood of water that came back from the culvert.”
*559 “Q. How is that?
“A. As much as twenty acres was damaged by water; as much as thirteen acres was standing up on it was overflowed by water that was backed up.”
C. B. White has this to say of the rainfall on Cross Road's creek:
“Q. That was a tremendous flood in August, 1917?
“A. No, sir, not on my land. My creek did not get out of the banks.” Again—
“Q. Wasn’t the water higher than (August, 1917) on the north Hardware river than it has been since 1870 ?
“A. No, it wasn’t. That culvert wouldn’t let it pass, but it wasn’t higher down below than I have seen it before.”
“Q. How long have you lived in that neighborhood Mr. Mawyer?
“A. All my life.
“Q. What would you say as to the rain that occurred on that day (August, 1917), as to the size of it?
“A. Well, I have seen the creek coming down from my house or down to Charlie White’s (the plaintiff), I have seen it much higher than it was that day.
“Q. Would you call that rain an extraordinary flood?
“A. No more than I have seen, not as much as I have seen on that part where I have lived.
“Q. Mr. Mawyer, was that such a rain as might reasonably be expected to occur at certain seasons of the year?
“A. I don’t see why. I have seen the water higher on that stream than I did then.”
Other witnesses testify to the same effect, some of them more strongly, as to the rainfall in August, 1917, on Cross Roads creek.
Lewis Johnson, an old man of sixty, states that there is a tree east of the culvert over the Hardware river, and that at different times he and others had made marks upon that tree showing the height of unusual flood waters in the river. There were six of these marks. Comparing the mark for 1917 with the antecedent marks, this witness says that the “water was nothing like as high as it had been.”
Mr. Samuel M. Page, a witness for the plaintiffs, speaking of the rain on the north Hardware creek, the one on which Bowden lives, says: “I have lived in that neighborhood forty years. There is no question but what the rain (August, 1917) was a very severe rain. I live on the north branch of the Hardware. It was unquestionably a very hard rain. I have seen the water higher on my place than it was at that time several times in the last four years.
“Q. Mr. Page, was that such a freshet as might reasonably be expected to occur at certain seasons of the year?
“A. I have seen a great many overflows in the last four years, harder rains. This was probably one of the hardest rains. We seldom have as hard rain as that, but I have seen harder, some' three times in the last forty years. I have seen harder rains and higher water at my place.”
The plaintiffs do not contend that the productive qualities of their lands, so far, have been diminished. They agree 'that unless the flooding operations are repeated too often and last too long, the backing of the waters of the Hardware river on their lands will deposit silt that in all likelihood will enhance their fertility. But the plaintiffs do contend and sustain that contention by ample and uncontradicted testimony, (1) that the flood of 1917 established the inadequacy of the culvert in question to carry off the high waters of a periodical character reasonably likely to occur on the watershed of the Hardware river, (2) that the inadequacy of the culvert under these conditions renders the same a perpetual menace to their properties, and (8) that this menace has materially reduced their market value of the same.
If in advance of the experience of 1917 the plaintiffs had brought actions for damages to the market value of their lands arising from the construction of the culvert, they would have been confronted with the defense that the damages claimed were speculative and conjectural. They would
The issues (1) of the inadequacy of the culvert, (2) of the diminution of market value of the lands of the plaintiffs due to that inadequacy, and (3) of the extent of that diminution, were submitted to the jury, and verdicts, as stated, supra, were rendered in favor of the plaintiffs, both for the growing crops and the reduction in the value of the lands affected.
The plaintiffs in error seek to bring their defense against the claim for damages for reduction in the market value
Mr. Freeman, in a note to the case of St. Louis, etc. v. Biggs, 20 Am. St. Rep. 174, 176, says: “The authorities agree that when the original act creating a nuisance to land is permanent in its nature, and is at once productive of all the damage which can ever result from, it, and at once destroys the estate for all practicable purposes, so that when the act is completed all the damage that can be effected thereby is consummated, the entire damages must be recovered in one action, and the statute of limitations begins to run against the cause of action from the time of the complete erection of the nuisance.”
“What constitutes a permanent nuisance within the meaning of the rule above given is thus defined in a leading case: ‘Wherever the nuisance is of such a character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause but human labor, there the damage is an original damage, and may be at once fully, compensated, since the injured person has no means to compel the individual doing the wrong to apply the labor necessary to remove the cause of injury, and can only cause it to be done by the expenditure of his own means.” Troy v. Cheshire Ry. Co., 23 N. H. 83, 55 Am. Dec. 177.
The culvert in question was a structure on the defendant’s property. Under the test of actual trial, it was proven to be an occasion of injury, a perpetual menace, under the
But in the case in judgment, the culvert, under the prevailing and established weather conditions, is a permanent menace. The use by the company of the tracks forming the superstructure of the culvert in no wise affects the situation. It neither increases nor diminishes the menace of the structure itself. The culvert which is the cause of injury is a permanent structure, and “will continue in due course without change from any cause but human labor.” The injured parties have “no means to compel the defendant company which has inflicted the wrong to apply the labor necessary to remove the cause of injury.”
In the case of Southern Railway Co. v. McMenamin, 113 Va. 121, 131, 73 S. E. 980, 983, the court says: “The general rule with respect to nuisances undoubtedly is that repeated actions may be brought as long as the nuisance continues, but an exception to the general rule, as well established as the rule itself, is that where a nuisance is permanent, the consequences of which in the normal course of things, will continue indefinitely, there is but a single action therefor, and the entire damage suffered, both past and future, must be recovered in that action, and the right to recover will be barred unless it is brought within the prescribed number of years from the time the cause of action accrued.”
To the same effect is the Etheridge Case, 120 Va. 379, 381, 91 S. E. 133, 134, in which it appears that an “enormous dam and reservoir was built across a natural water course known as ‘Gum Swamp.’ The lake of water thus impounded covers some four hundred and fifty acres of land belonging to the defendant, the entire structure #being
The court, in this case, said in part: “There can be no question that this is a permanent structure, and that the evidence warrants the conclusion, that the injuries to the land flowing from it are not of a recurrent or intermittent character, but are permanent in their nature, and in the normal course of things will continue indefinitely. It is true that the water sometimes gets low in dry weather, and the overflow ceases temporarily, but the menace of an ov'er-n flow and destruction of crops is always present, as shown by the repeated damage to crops.” (Italics supplied.) 120 Va. p. 381, 91 S. E. 134.
On page 382 of this case (91 S. E. 134) the court states the measure of damages in these cases: “In conclusion, we are of opinion that under the law and the facts of this case, the permanent damage to the land of the plaintiff, both past and future, must be recovered in this action, the measure of such damage being the difference in the market value of the land with and without the dam, to be computed as of the time immediately before the dam was built and immediately after it was finished and filled with water.”
The case of Worley v. Mathieson Alkali Works, 119 Va. 862, 89 S. E. 880, is another case in which the damage alleged to have been sustained by the plaintiff resulted from a cause permanent in its character. . This was a case of continuing stream pollution. The court held that this was “plainly a case of permanent nuisance, the consequences of which, in the normal course of things, would continue indefinitely.” Hence, the plaintiff was limited to a single action for the entire damage, past and future.
The trial court was plainly right in holding that all damages could be collected in one action, and in directing the jury, in response to an inquiry from one of its members as to whether a verdict in the case for permanent damage to land would cover damage to land and crops in future, that such a verdict would cover such damages, and no other suit for damages could be brought by either of the plaintiffs, their heirs, assigns, or successors.
In view of what we have already said, the trial court was plainly right in overruling this motion. It is true that the extent of the injurious effect of the culvert upon the value of the plaintiffs’ lands was a matter of opinion; but there is much testimony given in court that really, in the ultimate, is merely human judgment, or opinion. Absolute certainty is rarely attainable in court proceedings, or conclusions therein reached with the precision and severity of a mathematical demonstration. The law very sensibly allows all the relevant facts and circumstances to be placed before the jury that will aid them to make an intelligent disposition of the issue submitted. This court has cited with approval in Southern Ry. Co. v. McMenamin, supra, 113 Va. p. 129, 73 S. E. 982, the following extract from a text-book of recognized authority: “Absolute certainty in such cases is not attainable and is not. required. The injured party cannot be denied the right to recover because he cannot show the exact amount with certainty, though he is ready to show to the satisfaction of the jury that he has suffered large damage. Where, from the nature of the case, thé amount of damage cannot be ascertained with certainty, there is no objection to placing before the jury all the facts .and circumstances of the case having any tendency to show damages or their probable amount, so as to enable them
This case was submitted to the jury on the merits, under instructions that were appropriate to the facts. There was no error in the instruction that the jury could ascertain and include the entire damage in one verdict, nor in any of the other instructions given by the court. These instructions very accurately and compactly state the law. Nor was there any error in refusing the instructions of the defendant.
In the view that we have taken of the case, the defendant company, upon the facts and pursuant to established principles, was clearly liable for' the damages to the growing crops of the plaintiffs inflicted in the year 1917, and for the diminution in the market value of their lands. These issues were submitted to the jury with accompanying instructions that adequately and correctly afforded the appropriate law.
The judgment of the Circuit Court of Albemarle county is affirmed.
Affirmed.