TAFT, Circuit Judge
(after stating the facts as above). Were the city to be flooded by reason of the erection of the embankment by the defendant railway company upon the island, the municipal corporation and the private persons injured would have an action against the defendants, which at common law would have been trespass on the case for a private nuisance. In English courts of equity it was, for a long time, laid down as a rule in such cases that until the right of the complainant was definitely established by an action at law the extraordinary remedy of injunction would not be granted by the chancellor. Carlisle v. Cooper, 21 N. J. Eq. 576. The strictness of this doctrine has, in modern years, considerably abated, especially in this country; and where the right to object is clear, and the injury threatened is obvious and clearly proven, injunction has been deemed a proper remedy, even without a judgment at law, to prevent an injury which in its nature would be irreparable, and not to be adequately compensated in damages. It is clear, and, indeed, is admitted, in this case, that if the erection of the embankment as proposed will substantially add to the flooding of the waters over the streets, alleys, and houses of the city in times of freshets or flood, the injuries threatened are, within the meaning of the law, irreparable, and not to be adequately compensated in damages. But it is well settled that an injunction does not issue in such cases unless the probability of danger is clearly shown, and the existence of the nuisance clearly made out upon determinate and satisfactory evidence, and that in no case will the chancellor interfere by in[731]*731junction where the nuisance sought to be abated or restrained is eventual or contingent, or where the evidence is conflicting', and the injury to the public, or to the individual complaining, doubtful. Hahn v. Thornberry, 7 Bush, 403; Story, Eq. Jur. § 924; Dumesnil v. Dupont, 18 B. Mon. 800; Ronayne v. Loranger, 66 Mich. 373, 33 N. W. 840; Blatchford v. Dock Co., 22 Ill. App. 376; Hutchinson v. Thompson, 9 Ohio, 52; Avery v. Fox, 2 Fed. Cas. p. 245 (No. 674); Thornton v. Grant, 10 R. I. 477; Railroad v. Ward, 2 Black, 485; Spangler v. City of Cleveland, 43 Ohio St. 526, 3 N. E. 365. No different rule is laid down in City of Dayton v. Robert, 8 Ohio Cir. Ct. R. 649. upon which complainant relies, because the case there was heard upon a demurrer to the petition, and did not involve the question of burden of proof. In this case the defendant company is conceded to be the owner of that part of the island upon which its trestlework stands. In ordinary st.ages of water the trestlework' stands upon dry land. The island has upon one side of it a channel varying from 300 to 500 feet in width, and on the other side a channel varying from 200 to 250 feet in width. Before the city can obtain an injunction preventing the railroad company from using its own land as it chooses, we are of opinion that the burden is upon the city to show clearly that the erection of the proposed embankment will probably increase materially the damage which floods in the stream always do to the streets and alleys and some of the houses thereof. An examination of the opinion of the court below in sustaining the exceptions to the master’s report seems to show that the court: regarded the burden of proof as upon the defendant to show that the erection of the embankment would not injure the city. In this, it seems to us. the court erred. A refusal of a perpetual injunction in this instance does not estop the city, or any of its inhabitants, from bringing an action at law to recover damages and to abate the nuisance, if the erection of the embankment hereafter prove to be injurious. At least, such effect may be avoided by inserting the words in the decree, as the defendant suggests,.(hat the refusal to grant the injunction shall be without prejudice to any action at law which may thereafter be brought in respect of damages arising from the embankment, and to abate the alleged nuisance. The master was several weeks in taking the evidence upon the one point in issue. The evidencie was all oral. The witnesses came before the master. He, after frequent examinations of the locus in quo, had a much better opportunity than the court below or this court to judge of the weight to be accorded to (he evidence of each witness. It is a settled rule in the federal courts that, in dealing with exceptions to a master’s report, the conclusions of the master, depending upon conflicting testimony, have every reasonable presumption in their favor, and are not to be sec aside or modified unless there clearly appears to have been error or mistake on Ms part. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237; Third Nat. Bank v. National Bank, 30 C. C. A. 436, 86 Fed. 852; The Cayuga, 16 U. S. App. 577, 8 C. C. A. 188, and 59 Fed. 483.
[732]*732The first issue of fact before the master was whether the erection of the embankment would increase the height of water, during any flood without ice, which was likely to come down the river, so as to throw it back further upon the streets and alleys of the city. He found that the water way under the two bridges was more than three times what it was under the Lake Shore bridge, more than double what it was under the Wheeling & Lake Erie bridge, and considerably more than double what it was under the State street bridge, and that, although the flow of .the water under the Lake Shore and Wheeling & Lake Erie bridges would be more rapid than that under the defendant railway company’s bridges, the increased head of water below State street would increase the speed of the flow under defendant’s bridges, and there would not be the slightest danger that the water would be retarded or its height raised thereby. We have examined all the evidence, on this point, and, even if there were no master’s finding ini the case, we should certainly reach the same conclusion. A most cursory examination of the map, with a knowledge of the conditions which exist as to the rapidity of the current and depth of water, makes this an inevitable conclusion.
The only serious question which arises on the evidence is whether there .is any reasonable probability that, in times when the floods are accompanied by ice, the ice will so gorge under the two bridges of the defendant company as to form a dam, from behind which the water can only escape by flowing over the island. The most disastrous flood in the history of the river, except that of 1883, was in 1866, before the bridges of the defendant company were erected. In that case a gorge of ice was made at a point several hundred feet south of the Lake Shore bridge, and the water, overflowing the banks of the river, was thrown into Front street, and flowed thence down into the lower business part of the city, lying along* the bank of the river on the west side. Another gorge was formed at the first Boyer’s bend, about a half mile below the northernmost point of the island; and the bottoms to the west of the riyer and to the north of the inhabited part of the city were all covered with water. In the flood of 1883, which was the highest flood in the history of the city, the first gorge was formed a few hundred feet north of the State street bridge.
Free access — add to your briefcase to read the full text and ask questions with AI
TAFT, Circuit Judge
(after stating the facts as above). Were the city to be flooded by reason of the erection of the embankment by the defendant railway company upon the island, the municipal corporation and the private persons injured would have an action against the defendants, which at common law would have been trespass on the case for a private nuisance. In English courts of equity it was, for a long time, laid down as a rule in such cases that until the right of the complainant was definitely established by an action at law the extraordinary remedy of injunction would not be granted by the chancellor. Carlisle v. Cooper, 21 N. J. Eq. 576. The strictness of this doctrine has, in modern years, considerably abated, especially in this country; and where the right to object is clear, and the injury threatened is obvious and clearly proven, injunction has been deemed a proper remedy, even without a judgment at law, to prevent an injury which in its nature would be irreparable, and not to be adequately compensated in damages. It is clear, and, indeed, is admitted, in this case, that if the erection of the embankment as proposed will substantially add to the flooding of the waters over the streets, alleys, and houses of the city in times of freshets or flood, the injuries threatened are, within the meaning of the law, irreparable, and not to be adequately compensated in damages. But it is well settled that an injunction does not issue in such cases unless the probability of danger is clearly shown, and the existence of the nuisance clearly made out upon determinate and satisfactory evidence, and that in no case will the chancellor interfere by in[731]*731junction where the nuisance sought to be abated or restrained is eventual or contingent, or where the evidence is conflicting', and the injury to the public, or to the individual complaining, doubtful. Hahn v. Thornberry, 7 Bush, 403; Story, Eq. Jur. § 924; Dumesnil v. Dupont, 18 B. Mon. 800; Ronayne v. Loranger, 66 Mich. 373, 33 N. W. 840; Blatchford v. Dock Co., 22 Ill. App. 376; Hutchinson v. Thompson, 9 Ohio, 52; Avery v. Fox, 2 Fed. Cas. p. 245 (No. 674); Thornton v. Grant, 10 R. I. 477; Railroad v. Ward, 2 Black, 485; Spangler v. City of Cleveland, 43 Ohio St. 526, 3 N. E. 365. No different rule is laid down in City of Dayton v. Robert, 8 Ohio Cir. Ct. R. 649. upon which complainant relies, because the case there was heard upon a demurrer to the petition, and did not involve the question of burden of proof. In this case the defendant company is conceded to be the owner of that part of the island upon which its trestlework stands. In ordinary st.ages of water the trestlework' stands upon dry land. The island has upon one side of it a channel varying from 300 to 500 feet in width, and on the other side a channel varying from 200 to 250 feet in width. Before the city can obtain an injunction preventing the railroad company from using its own land as it chooses, we are of opinion that the burden is upon the city to show clearly that the erection of the proposed embankment will probably increase materially the damage which floods in the stream always do to the streets and alleys and some of the houses thereof. An examination of the opinion of the court below in sustaining the exceptions to the master’s report seems to show that the court: regarded the burden of proof as upon the defendant to show that the erection of the embankment would not injure the city. In this, it seems to us. the court erred. A refusal of a perpetual injunction in this instance does not estop the city, or any of its inhabitants, from bringing an action at law to recover damages and to abate the nuisance, if the erection of the embankment hereafter prove to be injurious. At least, such effect may be avoided by inserting the words in the decree, as the defendant suggests,.(hat the refusal to grant the injunction shall be without prejudice to any action at law which may thereafter be brought in respect of damages arising from the embankment, and to abate the alleged nuisance. The master was several weeks in taking the evidence upon the one point in issue. The evidencie was all oral. The witnesses came before the master. He, after frequent examinations of the locus in quo, had a much better opportunity than the court below or this court to judge of the weight to be accorded to (he evidence of each witness. It is a settled rule in the federal courts that, in dealing with exceptions to a master’s report, the conclusions of the master, depending upon conflicting testimony, have every reasonable presumption in their favor, and are not to be sec aside or modified unless there clearly appears to have been error or mistake on Ms part. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237; Third Nat. Bank v. National Bank, 30 C. C. A. 436, 86 Fed. 852; The Cayuga, 16 U. S. App. 577, 8 C. C. A. 188, and 59 Fed. 483.
[732]*732The first issue of fact before the master was whether the erection of the embankment would increase the height of water, during any flood without ice, which was likely to come down the river, so as to throw it back further upon the streets and alleys of the city. He found that the water way under the two bridges was more than three times what it was under the Lake Shore bridge, more than double what it was under the Wheeling & Lake Erie bridge, and considerably more than double what it was under the State street bridge, and that, although the flow of .the water under the Lake Shore and Wheeling & Lake Erie bridges would be more rapid than that under the defendant railway company’s bridges, the increased head of water below State street would increase the speed of the flow under defendant’s bridges, and there would not be the slightest danger that the water would be retarded or its height raised thereby. We have examined all the evidence, on this point, and, even if there were no master’s finding ini the case, we should certainly reach the same conclusion. A most cursory examination of the map, with a knowledge of the conditions which exist as to the rapidity of the current and depth of water, makes this an inevitable conclusion.
The only serious question which arises on the evidence is whether there .is any reasonable probability that, in times when the floods are accompanied by ice, the ice will so gorge under the two bridges of the defendant company as to form a dam, from behind which the water can only escape by flowing over the island. The most disastrous flood in the history of the river, except that of 1883, was in 1866, before the bridges of the defendant company were erected. In that case a gorge of ice was made at a point several hundred feet south of the Lake Shore bridge, and the water, overflowing the banks of the river, was thrown into Front street, and flowed thence down into the lower business part of the city, lying along* the bank of the river on the west side. Another gorge was formed at the first Boyer’s bend, about a half mile below the northernmost point of the island; and the bottoms to the west of the riyer and to the north of the inhabited part of the city were all covered with water. In the flood of 1883, which was the highest flood in the history of the city, the first gorge was formed a few hundred feet north of the State street bridge. As the ice coming down the river struck the anchor ice, which was frozen to the bottom of the stream, in the shallow and slack water at that point, the gorge was of sufficient height and strength to hold back the water for a short time, so that the level of the water below the gorge was higher than that above it. But as the water came down in greater force the gorge broke away, and was earned under the defendant’s bridge down to the First Boyer’s bend, where another gorge was formed, of great height and strength. The water rose 5 feet higher than it ever had risen before, to a point 18 feet above the datum, an arbitrary point fixed by the city authorities, being about 1 foot below the surface of the water at ordinary stage under the bridge of the defendant. There is much evidence adduced by the complainant to sho*nl that there was a heavy gorge under both of the defendant’s bridges,' and that this gorge extended across both bridges and across the trestlework, and banked up the water so that it [733]*733was a number of feet higher on the south side than on the north side. The master finds that the witnesses to this condition of affairs did not have the opportunities for observation. We have examined the evidence with care upon this point, and we agree with the master that there were no such gorges as are described by the witnesses for the compla in-ant at the two bridges, and at the trestlework, in the flood of 1883. The circumstances which the master cites to show the fact to be otherwise seem to us conclusive upon this point. The evidence of persons who went under the bridge in boats; the fact that freight cars during the high water were carded down the river, and passed between the piers of the west bridge, across the main channel; the fact that the photograph taken the next day after the highest point of the flood discloses no such gorge, — are not to be overcome by the indefinite statements of witnesses, many of them not yet more than 10 years old, as to an event 14 years before, especially when those witnesses are expressly contradicted by older and more experienced observers. It is perfectly clear, and it seems to us that the master demonstrates it, that the flood of 1883 was caused by the fact that the water had such huge volume that it could not escape from the second Boyer’s bend into the lake levels beyond in time to prevent the flooding of the bottoms and of part of the city. The master finds that the two bridges of the defendant company had no effect whatever in increasing the height of that flood, and we agree with him.' It is altogether probable that a trestlework constructed as lightly as this tree fie work was, if it had had an ice gorge against it as the complainant’s witnesses testify, with a head of water behind it from three to eight feet above the water on the other side, would have been carried away. We think the weight of the evidence clearly supports the finding of the master that such current as there is upon the island is very much less than the current in the main channels during the floods, and that the island is overflowed first at the low places on both sides of the bridge, and is not overflowed by the wave of the flood as it first comes down. The circumstantial evidence upon this point, the absence of any scouring upon the island, the testimony of the witnesses who own and have cultivated the island, it seems to us, entirely justify the finding of the master. Indeed, there is but a single witness who testifies to the contrary among the complainant’s witnesses. The other evidence upon which the complainant relies to show the presence of ihe current upon the island is the existence of a current a long distance away from the island, in the flats on the west side of the river, — a current the existence of which is entirely consistent with comparative quiet of the water upon the island. The truth is that, judging by the flood of 1883, the island does not form the safely valve from floods, as contended on behalf of complainant. The main body of the water passed under the bridges of the defendant, and not over the island, at all times during the flood of 1883; and while there was, doubtless, ice gathered at the piers and on the hanks of the stream, this did not interrupt the flow of the water at either bridge. It is true that the master finds, and there is evidence to show, that there is a tendency of the ice to gorge at a point 600 or 800 feet below the gorge on the shoal [734]*734sand bar, wbicb runs out from the island, and that this extends across the river, and has a tendency to throw the water out of the channel of the river onto the bottoms to the north and west of the stream, and that this gorge has been known to extend up nearly or quite to the bridge. It was not the case in 1883; nor does the evidence satisfy us that at any time in the history of the river there was a gorge under both bridges of such a size and strength that the water would be prevented from passing on, and would need the island as a mode of escape. All experts agree that the tendency of ice to gorge is at the shoal places, and the water is deeper immediately beneath the two bridges of defendant than at any point a considerable distance above or below. The evidence of the complainant’s expert is that, after making measurements and calculations as to the head of water by a formula, the accuracy of which, in conditions here existing, is by no means established, he finds that if the river were bank full, and both channels were contracted by ice gorges closing up one-third of the waterway; the height of the water would be increased 84/ioo of a foot, or 9 inches, and that, if one-half of the remainder of the channels were closed with ice, the water would be raised 115/ioo of a foot. ' He proceeds upon the theory that the current on the island is the same as in the channels, when the water is above the island. This is unsound. The master found- that there was no probability that the channels of the river would be blocked up to the extent of one-third or one-half of the water way. As the water increases, the probability that the gorge will withstand the pressure of the water decreases. The reason why the gorge at First Boyer’s bend in 1866 and 1883 remained so long was because the water found an easy outlet through the very low bottoms to the second Boyer’s bend below. The evidence does not satisfy us that' any gorge under the defendant’s bridges across the main or east branches of the river has ever reached such a height and such strength as to require the island as a means for the water to escape. The government engineer, who testified on behalf of the defendant, expressed the opinion that the filling of the trestle and making it a solid embankment, would have the effect of a training dike to carry the water and ice down through the east channel, and would facilitate the passing of the ice, rather than retard it. It seems to us that this is a reasonable view. The danger of flooding a small part of the city of Fremont is, of course, one that should be avoided if possible; but the remote additional injury or damage likely to result from an increase, in a flood of the depth varying from 12 to 18 feet, of an additional foot or 18 inches, is not such a danger as to require the court to depart, from well-settled rules of law in determining the rights between a municipal corporation and a railway corporation. It is to be borne in mind that the erection of the embankment upon the island is on the land of the defendant railway company, and that it does not become a wrong until it is shown that it will inflict injury. The maxim, “Sic utere tuo ut alienum non Itedas,” has no application until the actual or threatened injury is proven. This is not a case of res ipsa lo-quitur. The learned judge at the circuit treated the embankment as a dam. If it were a dam clear across the river, then the flooding [735]*735back of the water to the height of (lie dam from the sides of the stream -would be an. inevitable physical result. But the error is in the assumption that the embankment is a dam. There are two channels, on each side of the embankment, with greatly more water way than is given by the bridges above, or by the banks of the river at Boyer's bend below; and the only possible way in which the embankment can become a dam is by its continuation through the formation of ice gorges across both channels of the river at the same time to the height from the bottom of ike river of at least 12 feet. The evidence does not satisfy us that this is probable, or, indeed, that it has ever happened. The mere possibility that it may happen is a contingency which does not justify the extraordinary remedy of an injunction. It would seem to us to be, if it did happen, so remote a natural cause as to come within the class of contingencies known as “acts of God.” The learned judge at the circuit regarded the fact that the railroad company has always maintained an open-space trestle across the island, as conduct signifying its fear that a solid embankment would be productive of injury. A much more satisfactory reason for the present open trestle, it seems to us, is found in the circumstance that the cost oí a wooden trestle was at the time of its erection very considerably less than the cost of filling with the necessary masonry and rip-rap work. The basis for the conclusion of the learned judge at the circuit is found in these words from his opinion:
“I do not say that the proof shows that floods will occur, hut it certainly does not show that they may not occur; and the danger remains the same, whether the conditions shall ever arise that firing about a flood or not. The possible occurrence of such conditions is sufficient, in my judgment, to maintain the injunction.”
We cannot concur in this view of the law. We think the danger must be shown to be probable, and not merely possible, where the remedy by injunction is sought to be enforced. The decree of the court below granting the injunction is reversed, at the costs of the appellant, with insi ructions to enter a decree dismissing the bill for an injunction, without prejudice to the right of the complainant, should circumstances arise in the future justifying it, to bring aii action at law, either for damages, or to abate a nuisance arising from the erection of such embankment.