Ferderer v. Northern Pacific Railway Co. ( 1950 )

Burke, J.

(dissenting). I cannot agree that the evidence in this case is sufficient to sustain a finding by the jury that the flooding of plaintiff’s land and the resultant damage were proximately caused by any act or omission on the part of the defendant. On the contrary I am satisfied that the evidence, affirmatively demonstrates that plaintiff’s land would have been flooded in the spring of 1943, had the defendant never interfered to divert the Cannonball River from a part of its natural course.

As has been stated in the opinion prepared by Chief Justice Nuessle, the defendant had built a railroad grade, east and west, across a loop in the natural course of the Cannonball River and had short-circuited' the river by building an artificial channel across the loop north of the railroad grade. Plaintiff’s buildings were south of the grade and adjacent to the natural, but no longer used, course of the stream! Two culverts, thirty-six inches in diameter, were installed in the grade at a point some two hundred feet west of the west end of the loop and two culverts, thirty inches in diameter, were installed in the grade at the bottom of the old channel at the east end of the loop. If I believed that the evidence justified a conclusion that the flooding of plaintiff’s land had been caused either by the inadequacy, of these culverts or their difference in capacity, I would unhesitatingly agree with the majority in this case.

As I view the record, however, the evidence, most favorable to the plaintiff, will permit, no more than a conclusion that the inadequacy of the culverts, at most, augmented the flood upon plaintiff’s land to a small degree.

It was established by uiicontroverted proof, confirmed by the record of the U. S. Weather Bureau, that the Cannonball River in the latter part of March 1943, reached flood stages higher than in any other years within the recollection of the witnesses. It was also established that the riparian lands along the Cannonball, immediately above and immediately below the plaintiff’s land, were flooded to depths never previously attained within the memories of the owners of the lands. If the river had been permitted to run its natural course, the flood waters above plaintiff’s land would of necessity have traversed the old channel adjacent to plaintiff’s buildings.

For a time the railroad grade partially protected plaintiff’s land from these flood waters. His land, however, was gradually flooded on the 25th and 26th of March by water which poured through the culverts at the west end of the railroad grade and according to most witnesses through the culverts at the east end also. One witness, however, whom the jury could have believed, testified that on the afternoon of the 25th of March, the water at the east end of the loop was one foot'higher on the south side' of the railroad grade than it was on the north side and that on the afternoon of the 26th of March the water was two feet higher on the south side.

It is clear to me, therefore, that even under the testimony most favorable to the plaintiff, the degree of flooding which can be attributed to the inadequacy of the culverts at the east end of the loop is no more than that which would have resulted from the difference in elevation between tbe waters on the south, and north sides of the grade. This was at most two feet. Since plaintiff’s barns were flooded to a depth of ten or twelve feet, it is apparent that the bulk of his damage could not have been caused by inadequate culverts.

It is also clear that plaintiff’s damage was not caused by the lack of capacity of the artificial channel through which the river had been diverted. Greater capacity in this channel would have resulted in raising the level of the water on the north side of the culverts, at the east end of the loop, and in blocking to a greater extent the egress of flood waters from plaintiff’s land.

I think the judgment of the district court should be reversed.