TRIEBER, District Judge
(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.”
[1] That the limitation of actions is governed by the lex fori, and. is controlled by the legislation Of the state in which the action is brought, as construed by the highest court of, that state, even if the legislative act or the judicial construction differs from that prevailing in other jurisdictions, is as well settled in the national courts, as any proposition of law. Among the numerous cases sustaining that rule, we refer to the following: Great Western Telegraph Co. v. Purdy, 162 U. S. 329, 339, 16 Sup. Ct. 810, 40 L. Ed. 986; Dibble v. Bellingham Bay Land Co., 163 U. S. 67, 73, 16 Sup. Ct. 939, 41 L. Ed. 72; Hartford Ins. Co. v. Chicago, etc., Ry. Co., 175 U. S. 91, 98, 20 Sup. Ct. 33, 44 L. Ed. 84.
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.
[2] It is the settled law of the state of Arkansas that, when it appears from the complaint .in an action at law that sufficient time has elapsed to bar tire cause of action, and no ground for avoiding the bar [221]*221of the statute is alleged in the complaint, a demurrer will lie. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; Anthony v. Railway Co., 108 Ark. 219, 157 S. W. 394; Cubbins v. Mississippi River Commission (D. C.) 204 Fed. 299, 308, The question therefore is whether the complaint shows on its face that the action is barred, and that there can be no recovery by reason thereof, regardless of the merits of the case.
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.”
[3, 4] But it is contended on behalf of the plaintiff that this rule only applies to permanent obstructions, and the complaint expressly charges that these levees were not of a permanent nature, until they were strengthened, and raised so as to be above the height of the flood waters of the Mississippi river. It is true that the complaint alleges “that the said dikes, embankments, and line of levees are not of a permanent character,” but this is only the conclusion of, the pleader, while the facts set out in the complaint show the exact reverse. The statement of facts controls. Alabama v. Burr, 115 U. S. 413, 426, 6 Sup. Ct. 81, 29 L. Ed. 435; McAlister v. St. Louis, etc., Ry. Co., 107 Ark. 65, 69, 154 S. W. 186.
“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 [222]*222constructed they were neither high nor strong enough to withstand the high water and were broken or submerged, thus overflowing the embankments and flooding the lands which the levees were intended to protect, is no> proof that they were not intended to be permanent. Why were the millions spent, except for the purpose of protecting the lands behind the levees and the tracks of the railroad company from overflow? The levees were not needed when the river was below the danger line. Nor was it a wrong to raise them and strengthen them, if, experience showed that .unless this ■ was done the purpose for which the money had been expended would fail. As well may it be said that warehouses and bridges, or any other structures, are not of a permanent nature, if, as necessity requires it, they are strengthened and repaired, so as to make them safe. An embankment so cqnstructed as to let the flood waters through would not be a levee. We cannot for a moment presume that the officers of the complainant, especially its engineering department, ever entertained the idea that these structures were not intended to be permanent. Its engineers and other officials knew that the sole object of constructing these levees and embankments was to prevent the waters of the Mississippi river from flooding the lands.
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TRIEBER, District Judge
(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.”
[1] That the limitation of actions is governed by the lex fori, and. is controlled by the legislation Of the state in which the action is brought, as construed by the highest court of, that state, even if the legislative act or the judicial construction differs from that prevailing in other jurisdictions, is as well settled in the national courts, as any proposition of law. Among the numerous cases sustaining that rule, we refer to the following: Great Western Telegraph Co. v. Purdy, 162 U. S. 329, 339, 16 Sup. Ct. 810, 40 L. Ed. 986; Dibble v. Bellingham Bay Land Co., 163 U. S. 67, 73, 16 Sup. Ct. 939, 41 L. Ed. 72; Hartford Ins. Co. v. Chicago, etc., Ry. Co., 175 U. S. 91, 98, 20 Sup. Ct. 33, 44 L. Ed. 84.
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.
[2] It is the settled law of the state of Arkansas that, when it appears from the complaint .in an action at law that sufficient time has elapsed to bar tire cause of action, and no ground for avoiding the bar [221]*221of the statute is alleged in the complaint, a demurrer will lie. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; Anthony v. Railway Co., 108 Ark. 219, 157 S. W. 394; Cubbins v. Mississippi River Commission (D. C.) 204 Fed. 299, 308, The question therefore is whether the complaint shows on its face that the action is barred, and that there can be no recovery by reason thereof, regardless of the merits of the case.
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.”
[3, 4] But it is contended on behalf of the plaintiff that this rule only applies to permanent obstructions, and the complaint expressly charges that these levees were not of a permanent nature, until they were strengthened, and raised so as to be above the height of the flood waters of the Mississippi river. It is true that the complaint alleges “that the said dikes, embankments, and line of levees are not of a permanent character,” but this is only the conclusion of, the pleader, while the facts set out in the complaint show the exact reverse. The statement of facts controls. Alabama v. Burr, 115 U. S. 413, 426, 6 Sup. Ct. 81, 29 L. Ed. 435; McAlister v. St. Louis, etc., Ry. Co., 107 Ark. 65, 69, 154 S. W. 186.
“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 [222]*222constructed they were neither high nor strong enough to withstand the high water and were broken or submerged, thus overflowing the embankments and flooding the lands which the levees were intended to protect, is no> proof that they were not intended to be permanent. Why were the millions spent, except for the purpose of protecting the lands behind the levees and the tracks of the railroad company from overflow? The levees were not needed when the river was below the danger line. Nor was it a wrong to raise them and strengthen them, if, experience showed that .unless this ■ was done the purpose for which the money had been expended would fail. As well may it be said that warehouses and bridges, or any other structures, are not of a permanent nature, if, as necessity requires it, they are strengthened and repaired, so as to make them safe. An embankment so cqnstructed as to let the flood waters through would not be a levee. We cannot for a moment presume that the officers of the complainant, especially its engineering department, ever entertained the idea that these structures were not intended to be permanent. Its engineers and other officials knew that the sole object of constructing these levees and embankments was to prevent the waters of the Mississippi river from flooding the lands. That such embankments and levees are permanent structures, and that the statute of limitations begins to run from the time that they are completed, has been judiciously determined by the Supreme Court of, Arkansas in a number of cases. St. Francis Levee District v. Barton, 92 Ark. 406, 123 S. W. 382, 25. L. R. A. (N. S.) 645, 135 Am. St. Rep. 191; McAlister v. St. Louis, etc., Ry. Co., 107 Ark. 65, 154 S. W. 186; Chicago, Rock Island & Pacific Ry. Co. v. Humphreys, 107 Ark. 330, 335, 155 S. W. 127; Russell v. Board of Directors of Red River Levee District, supra.
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.
[5] So far as,the liability of the defendant railroad companies and the bridge company is concerned, there is another ground upon which the demurrer must be sustained, regardless of the statute of limitations. The allegations of the plaintiff show that the embankments complained of were constructed by these defendants in 1891; that these embankments caused no damages to the plaintiff. It is not claimed that at the time these embankments were constructed the defendants had no right to make them, or that they negligently constructed them. It is specifically alleged in tire complaint that these embankments caused no injury to lire plaintiff until after the board of directors of the levee district constructed their lines of levee, and raised them to the present height, which was done in 1909. These allegations clearly show that the building of the embankments by the defendant railroad companies was not the proximate cause of any damages suffered by the plaintiff, as the building of tire levees was an independent and intervening cause. It is an elementary principle of law that the breach [223]*223of duty upon which the action is brought must he, not only the cause, but the proximate cause, of the damage to the plaintiff, and the damage ought to have been foreseen in the light of the attending circumstances. Of the numerous authorities on that point, we refer to the following: Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256; Scheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070; Cole v. German Savings & Trust Society, 124 Fed. 115, 59 C. C. A. 593, 63 L. R. A. 416; American Bridge Co. v. Seeds, 144 Fed. 605, 608, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Teis v. Smuggler Mining Co., 158 Fed. 260, 85 C. C. A. 478, 15 L. R. A. (N. S.) 893; Armour & Co. v. Harcrow, 217 Fed. 224, 227, 133 C. C. A. 218, 221; Davidson v. Nichols, 11 Allen (Mass.) 514; McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97; Bierer v. Hurst, 155 Pa. 523, 26 Atl. 742; Siewerssen v. Harris County, 41 Tex. Civ. App. 115, 91 S. W. 333.
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.