Chicago, B. & Q. R. v. Board of Sup'rs

AMIDON, District Judge

(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 signed and' filed on the same date — December 9, 1908. In these last findings the court declares that each of these streams is “a natural water course,” and “while its waters spread somewhat in passing under said trestle bridge, said creek has well-defined banks both before passing under such trestle bridge and after.” There is much other language to the same effect.

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, 130 Iowa, 191, 106 N. W. 629, says:

“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, 121 N. W. 39, and Chicago & N. W. Ry. Co. v. Drainage Dist. No. 5, 121 N. W. 193, had before it the identical question which is here presented, and it was there ruled that a railroad company is not entitled to recover the expense of building a new bridge over a public drainage ditch, but that its damages are confined to the value of the easement across its right of way. These cases followed the decision of the Supreme Court of the United States in Burlington & Quincy R. R. Co. v. Drainage Commissioners, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, where a similar rule was enforced. The trial court was clearly right in following these decisions as a binding declaration of law.

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, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596.

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 road. The whole subject has been clearly defined-in the long line of cases in which railroads have been charged with the expense not only of building fences along their right of way, and cattle guards, but also with the expense of constructing crossings over new highways, both public and private, and also with the expense of constructing bridges and viaducts so as to obviate crossings at,grade whenever the public welfare required such a change. It has been uniformly contended by railroads that such expenses constituted a taking of their property for public use without just compensation, a deprivation of their property without due process of law, and a denial to them of the equal protection of the law. While there has been some conflict in the decisions, the overwhelming weight of authority at the present time is that such requirements are just, and are not subject to either of the constitutional objections mentioned.

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., 98 Minn. 380, 108 N. W. 261, 120 Am. St. Rep. 581, will be found an interesting discussion of the subject by Judge Brown, speaking for the Supreme Court of Minnesota. There a new highway had been opened across the defendant’s line, and a bridge constructed over the road at public expense. This bridge was destroyed, and the public authorities made demand upon the company to construct a proper bridge to carry the highway over its line. This request having been refused, mandamus was brought to compel the company to make the improvement. The suit was resisted upon the constitutional grounds above mentioned, but the writ was awarded. The opinion contains a very full review of the authorities. As to the duty and its grounds, the court says:

“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, 214 U. S. 497, 29 Sup. Ct. 698, 53 L. Ed. 1060. See, also, N. P. Ry. Co. v. Duluth, 208 U. S. 583, 592, 28 Sup. Ct. 341, 52 L. Ed. 630, et seq.

The case of New Orleans Gas Co. v. Drainage Commissioners, 197 U. S. 453, 25 Sup. Ct. 471, 49 L. Ed. 831, is directly in point. There a gas company was granted a franchise to lay its pipes and mains in the public streets. Under this franchise the pipes were placed at the point indicated by public authorities. Afterwards the city established a drainage system, and in its construction it became necessary to have the gas mains and pipes removed. The gas company claimed damages for the expense incurred in removing the pipes, and its right to recover was denied by the court. The fact that these gas pipes were laid in a public street is not controlling. They were laid there for a public purpose, and in compliance with public authority. The company’s right was a vested right, the same as any other right of private property. The court, while fully recognizing this, still held that the pipes were subject to such adjustment as should be rendered necessary by other public easements. It says of the company’s right:

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, 166 U. S. 226, 17 Sup.. Ct. 581, 41 L. Ed. 979. There, the company was required to open a new street across its right of way, and as elements of damage demanded the expense of erecting gates, planking the crossing, and maintaining a flagman. The court held that these were not proper items of damage, saying:

“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, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269. There the railroad company was required to construct a new viaduct to conduct a street over its road. This imposed a heavy expense on the railroad, and it was claimed deprived it of its property without due process of law. The court, however, denied the claim, and held that the duty of bearing such expenses was an incident to the right of the company to construct and maintain its road.

The case of In re Selectmen of Norwood, 161 Mass. 259, 37 N. E. 199, ¡is interesting because it arose in the state of Massachusetts, where from an early time the public authorities had been compelled by statute to bear all the expenses of putting in crossings at places where new streets were opened across the right of way of railroads. All the railroads in the state had been built under this statute. In 1890 another statute was passed imposing the burden.of such expense upon the railroad, and it was contended that the enforcement of that law amounted to a deprivation of property without due process of law, and a denial to the railroad company of the equal protection of -the law. Upon full review of the authorities the claim was denied, and the ground of the decision was stated to be that: ,

“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, 163 Ind. 36, 71 N. E. 151, had before it a case involving the expense of laying out a new street across the right of way of a railroad. On that subject the court says:

“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, whose decisions we have quoted, that a railroad corporation -takes its franchise authorizing it to construct and maintain its road, subject to the 'duty -of’ making such modifications in its roadbed, whether the same.-consists of trestle or grade, as may be necessary to carry the same across such public improvements as highways and public drains. To: require this claes' not deprive the company of its property without due process of law, or deny it. the equal protection o.f the law, but simply charges it with the obligation of maintaining its. own road.

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.