Pittsburgh, Cincinnati, Chicago & St. Louis Railroad v. Jessup

125 N.E. 780, 72 Ind. App. 344, 1920 Ind. App. LEXIS 34

• Court: Indiana Court of Appeals
• Decided: January 28, 1920
• Docket: No. 10,193
• Status: Published

Opinion

Dausman, J.

—The appellees instituted this action against the appellant to recover damages alleged to have resulted from appellant’s negligence. Verdict and judgment for the appellees in the sum of $1,800.

It appears from the record that the appellees are the owners of a tract of land located in the valley of Big Racoon Creek. Big Racoon Creek is a natural watercourse of considerable capacity and empties into the Wabash river at Armiesburg. The regular channel at the place involved in this action is about 160 feet wide. The bottom lands extend from the low-water channel to the hills on either side, forming a valley of more than a mile in width. The stream ordinarily flowing within its hanks consists of a large volume of water, but at times it becomes swollen, rapid and turbulent, and carries large quantities of logs, stumps and other debris; and at such times overflows the low-water channel and spreads out over the valley. At a place near appellees ’ land the appellant has maintained for more than ten years a railroad bridge over said stream, with approaches, about eleven feet high at the bridge, gradually diminishing in height and extending from the bridge a distance of about one mile on either side thereof. As originally constructed, these elevated approaches, on which appellant’s track is laid, consisted mainly of open trestle work. In the year 1910 appellant filled up a portion of the trestlework, about seventy-five feet long and eight feet high, with earth, stone and other substances, making a solid embankment with the exception of a three-foot tile which it placed therein. In the year 1913 appellant increased the height of said approaches by placing thereon dirt, "gravel, cinders and other substances. In 1915 appellant constructed in the low-Water channel of the stream solid masonry to the width of three feet across the south abutment, thereby diminishing the space between the abutments. Appellant has also permitted a large number of piling to remain in the channel under the bridge, extending about three feet above low-water mark and obstructing the passage of water under the bridge. By reason of heavy and continuous rains in March, June and July, 1913, great volumes of water came down said watercourse with great velocity, and large quantities of trees, logs, stumps, brush, and other debris accumulated under and about the bridge. The obstructions so placed and constructed in said watercourse by appellant interfered with the natural course and movement of the waters in such manner that it cut into appellees’ land, made great boles therein, washed away the soil, and deposited debris thereon.

The questions presented by this appeal are the identical questions of law which have been settled by the decisions in the following cases, viz.: New York, etc., R. Co. v. Hamlet Hay Co. (1898), 149 Ind. 344, 47 N. E. 1060, 49 N. E. 269; Evansville, etc., R. Co. v. Scott (1918), 67 Ind. App. 121, 114 N. E. 649.

On the authority of those cases, the judgment is affirmed.