Olympian Dredging Co. v. Southern Pac. Co.

Ninth Circuit

Olympian Dredging Co. v. Southern Pac. Co.

270 F. 384, 1921 U.S. App. LEXIS 2421

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 7, 1921

DocketNo. 3527

StatusPublished

This text of 270 F. 384 (Olympian Dredging Co. v. Southern Pac. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Olympian Dredging Co. v. Southern Pac. Co., 270 F. 384, 1921 U.S. App. LEXIS 2421 (9th Cir. 1921).

Pincite

Opinion

HUNT, Circuit Judge

(after stating the facts as above). [1] When the railroad company built the new bridge there was an obligation upon it to remove any piling that had been used in support of tire 1878 bridge, and which then constituted an obstruction to navigation, or which, considering the general character of the Sacramento river and the reasonable probability that in the future its bed in that vicinity would be materially shifted, would become an obstruction. We believe such a standard is correct generally, and is to be applied to the facts of the present case, where the railroad company knew that the channel of the river was a shifting one, and with such knowledge left piles standing id the bed of the river at places where it was reasonably probable the channel would shift. The piles could have been removed entirely, but for reasons of its own not material at all to be inquired into the company chose to cut the piles off and to leave them submerged where under changed conditions which ought to have been anticipated and guarded against they became a positive menace to navigation. It is, of course, highly important that there be no unnecessary obstruction to the navigation of rivers; hence it is a salutary rule that one who lawfully constructs a bridge across a river for railroad or business purposes must not only not obstruct free navigation at the time of construction, but must exercise diligence in guarding against dangers fairly to be anticipated. Among cases bearing upon the question we cite Vessel Owners’ Towing Co. v. Wilson, 63 Fed. 626, 11 C. C. A. 366; N. P. R. Co. v. United States, 104 Fed. 691, 44 C. C. A. 135, [387]*38759 L. R. A. 80; State v. So. Carolina R. Co., 28 S. C. 23, 4 S. E. 796. Philadelphia, W. & P. R. Co. v. Philadelphia & Havre de Grace St. Co., 23 How. (64 U. S.) 209, 16 L. Ed. 433, is cited by both sides. There the piles in the channel were cut off under the surface of the water and became a hidden and dangerous nuisance as the result of negligence in cutting off the piles, “not at the bottom of the river, but a few feet under the surface of the water.” We cannot draw the implication that the Supreme Court meant that, if the piles had been cut off at the bottom of the river, negligence could not be inferred. On the contrary, the court said it was the duty of the railroad company to take care that all the obstructions to the navigation which had been placed in the channel by their orders and for the purpose of their intended erection should be removed. Thus it seems to us was a general obligation recognized.

[2] Respondents say that the act of the railroad company in leaving the piles in the river bed was not the proximate cause of the accident, but that the construction of the jetty above the bridge site and the dredging operations below it were the cause. It may be granted that those two latter things had the effect of changing the channel of the river, and that as a result the level of the river was reduced. But when the 1878 bridge was destroyed in 1895 the railroad company knew that the channel was shifting, and knew that in 1893 the government had constructed a wing dam directly by the 1878 bridge for the very purpose of throwing the current of the river and the channel from the Yolo to the Sacramento side. Eor years there was knowledge that the shifting current would in all probability change the channel over to where the piles were submerged in the bed, and in constructing the later bridges the draw span was moved farther over toward the Sacramento side.

Under the circumstances and with the knowledge possessed, we think the railroad company cannot avoid liability upon the ground of an intervening cause. It was the failure to remove the piles left in the shifting stream that caused the damage, and the shifting of the channel, so far as it became a contributing force, ought reasonably to have been considered. The Santa Rita, 176 Fed. 890, 100 C. C. A. 360, 30 L. R. A. (N. S.) 1212; Vessel Owners’ Towing Co. v. Wilson, 63 Fed. 626, 11 C. C. A. 366. Nor is the question of liability affected by the fact that the conditions imposed by the War Department were complied with; for plainly the restrictions so imposed did not define the measure of liability of the railroad company to third persons rightfully navigating the river. Maxon et al. v. C. & N. W. R. R. Co. (D. C.) 122 Fed. 555. It is said that the liability of the Southern Pacific Company has not been established. The evidence is that the 1878 bridge was destroyed by the maintenance forces of the Southern Pacific Company and that the permit for the construction of the 1895 bridge had been issued by the government to the California Pacific Railroad Company; it being the custom for permits for bridges to issue to the corporations, not necessarily the leasing and operating company. It appeared that the Southern Pacific Company leased the California Pacific Railroad Company under an agreement dated No[388]*388vember 1, 1886, and that the provisions of the lease made it the duty of the Southern Pacific Company to keep and maintain the property leased in good'order, condition, and repair, and operate, maintain, and add to and better the same at its own expense. If it be assumed that there was no- obligation under the lease which required the Southern Pacific Company perpetually to care for property abandoned by the California Pacific Company, it is none the less true that the Southern Pacific built the 1895 bridge and destroyed the 1878 bridge, and in a practical way interpreted the provisions of the lease as requiring it not only to build the bridge that it built, but to do those things which it was under obligation to do in the way of keeping the channel free from obstructions which had been'left there at the time of the construction of the 1895 bridge.

The decree dismissing the libel is reversed, and the cause is remanded, with directions to determine the amount of the appellant’s damages upon the evidence in the case, and enter a decree therefor.

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HUNT, Circuit Judge

(after stating the facts as above). [1] When the railroad company built the new bridge there was an obligation upon it to remove any piling that had been used in support of tire 1878 bridge, and which then constituted an obstruction to navigation, or which, considering the general character of the Sacramento river and the reasonable probability that in the future its bed in that vicinity would be materially shifted, would become an obstruction. We believe such a standard is correct generally, and is to be applied to the facts of the present case, where the railroad company knew that the channel of the river was a shifting one, and with such knowledge left piles standing id the bed of the river at places where it was reasonably probable the channel would shift. The piles could have been removed entirely, but for reasons of its own not material at all to be inquired into the company chose to cut the piles off and to leave them submerged where under changed conditions which ought to have been anticipated and guarded against they became a positive menace to navigation. It is, of course, highly important that there be no unnecessary obstruction to the navigation of rivers; hence it is a salutary rule that one who lawfully constructs a bridge across a river for railroad or business purposes must not only not obstruct free navigation at the time of construction, but must exercise diligence in guarding against dangers fairly to be anticipated. Among cases bearing upon the question we cite Vessel Owners’ Towing Co. v. Wilson, 63 Fed. 626, 11 C. C. A. 366; N. P. R. Co. v. United States, 104 Fed. 691, 44 C. C. A. 135, [387]*38759 L. R. A. 80; State v. So. Carolina R. Co., 28 S. C. 23, 4 S. E. 796. Philadelphia, W. & P. R. Co. v. Philadelphia & Havre de Grace St. Co., 23 How. (64 U. S.) 209, 16 L. Ed. 433, is cited by both sides. There the piles in the channel were cut off under the surface of the water and became a hidden and dangerous nuisance as the result of negligence in cutting off the piles, “not at the bottom of the river, but a few feet under the surface of the water.” We cannot draw the implication that the Supreme Court meant that, if the piles had been cut off at the bottom of the river, negligence could not be inferred. On the contrary, the court said it was the duty of the railroad company to take care that all the obstructions to the navigation which had been placed in the channel by their orders and for the purpose of their intended erection should be removed. Thus it seems to us was a general obligation recognized.

[2] Respondents say that the act of the railroad company in leaving the piles in the river bed was not the proximate cause of the accident, but that the construction of the jetty above the bridge site and the dredging operations below it were the cause. It may be granted that those two latter things had the effect of changing the channel of the river, and that as a result the level of the river was reduced. But when the 1878 bridge was destroyed in 1895 the railroad company knew that the channel was shifting, and knew that in 1893 the government had constructed a wing dam directly by the 1878 bridge for the very purpose of throwing the current of the river and the channel from the Yolo to the Sacramento side. Eor years there was knowledge that the shifting current would in all probability change the channel over to where the piles were submerged in the bed, and in constructing the later bridges the draw span was moved farther over toward the Sacramento side.

Under the circumstances and with the knowledge possessed, we think the railroad company cannot avoid liability upon the ground of an intervening cause. It was the failure to remove the piles left in the shifting stream that caused the damage, and the shifting of the channel, so far as it became a contributing force, ought reasonably to have been considered. The Santa Rita, 176 Fed. 890, 100 C. C. A. 360, 30 L. R. A. (N. S.) 1212; Vessel Owners’ Towing Co. v. Wilson, 63 Fed. 626, 11 C. C. A. 366. Nor is the question of liability affected by the fact that the conditions imposed by the War Department were complied with; for plainly the restrictions so imposed did not define the measure of liability of the railroad company to third persons rightfully navigating the river. Maxon et al. v. C. & N. W. R. R. Co. (D. C.) 122 Fed. 555. It is said that the liability of the Southern Pacific Company has not been established. The evidence is that the 1878 bridge was destroyed by the maintenance forces of the Southern Pacific Company and that the permit for the construction of the 1895 bridge had been issued by the government to the California Pacific Railroad Company; it being the custom for permits for bridges to issue to the corporations, not necessarily the leasing and operating company. It appeared that the Southern Pacific Company leased the California Pacific Railroad Company under an agreement dated No[388]*388vember 1, 1886, and that the provisions of the lease made it the duty of the Southern Pacific Company to keep and maintain the property leased in good'order, condition, and repair, and operate, maintain, and add to and better the same at its own expense. If it be assumed that there was no- obligation under the lease which required the Southern Pacific Company perpetually to care for property abandoned by the California Pacific Company, it is none the less true that the Southern Pacific built the 1895 bridge and destroyed the 1878 bridge, and in a practical way interpreted the provisions of the lease as requiring it not only to build the bridge that it built, but to do those things which it was under obligation to do in the way of keeping the channel free from obstructions which had been'left there at the time of the construction of the 1895 bridge.

The decree dismissing the libel is reversed, and the cause is remanded, with directions to determine the amount of the appellant’s damages upon the evidence in the case, and enter a decree therefor.

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270 F. 384, 1921 U.S. App. LEXIS 2421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olympian-dredging-co-v-southern-pac-co-ca9-1921.

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