Riddle v. Baltimore & Ohio Railroad

73 S.E.2d 793, 137 W. Va. 733
CourtWest Virginia Supreme Court
DecidedJanuary 13, 1953
Docket10459
StatusPublished
Cited by30 cases

This text of 73 S.E.2d 793 (Riddle v. Baltimore & Ohio Railroad) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riddle v. Baltimore & Ohio Railroad, 73 S.E.2d 793, 137 W. Va. 733 (W. Va. 1953).

Opinions

Riley, President:

In this action of trespass on the case, instituted by Collie T. Riddle against The Baltimore and Ohio Railroad Company in the Circuit Court of Ritchie County, plaintiff seeks to recover damages to his residence property, situate between Fream Street and Bunnells Run in the City of Pennsboro, Ritchie County, alleged to be due to the flooding of his property by the backwater of Bunnells Run, allegedly caused by defendant’s negligence in maintaining an inadequate culvert under its railroad fill. To a judgment in the amount of $1,285.21, based on a jury verdict, the defendant prosecutes this writ of error.

Bunnells Run drains 1,250 acres of land north of the defendant’s railroad fill and culvert in the City of Penns-boro. The run forks approximately 1,800 feet upstream from the culvert. From the forks to the culvert the run flows in a southwesterly direction. Plaintiff’s property, which is approximately 1,300 feet upstream from the upper end of the culvert, faces Fream Street ánd its back or eastern line is contiguous with the center line of the run.

Several hundred feet below the Riddle property Bun-nells Run flows under Raymond Street, a cross-street running in an easterly and westerly direction, and then .under Church Street about 450 feet south of and parallel to Raymond Street. Several hundred feet to the south of Church Street the stream enters the upstream opening of the railroad culvert, and passing through for a distance of 121 feet proceeds to and under United States Route No. 50, which highway is to the south of and substantially parallel to defendant railroad company’s tracks, which [738]*738are located on top of the fill and above the defendant’s culvert.

The fill is 40 feet high from the floor of the culvert. The inside dimensions of the culvert are: height 8.9 feet; width 5.95 feet; the inside measurement between the end of the wings of the stone wing wall at the north end of the culvert is 11.3 feet; and the height of the arch of the culvert from the side walls is 3.1 feet.

The elevations of the bed of Bunnells Run above sea level are: at the north end of the bridge on U. S. Route No. 50, 813.26 feet; at the downstream end of defendant’s culvert about 200 feet upstream above U. S. Route No. 50, 813.88 feet; at the upstream end of the culvert, 815.27 feet; at the north side of the bridge at Church Street, 821.50 feet; at the north side of the bridge on Raymond Street, 824.38 feet; and at the forks of the run above plaintiff’s residence, 832.97 feet. At a point near the front door of plaintiff’s residence on the walk connecting the residence with Fream Street, and at a point at the northerly side of Denton Davis’ residence, situated a short distance south of plaintiff’s residence, the sea level elevations are 834.88 feet and 832.65 feet, respectively.

Sea level readings of the high water marks taken by plaintiff’s witness, Bernard Rinehart, a civil engineer, at an incinerator (821.29), approximately 65 to 70 feet downstream from the fill and on the basement wall of a store, designated in the record as “McCollough’s Store” (837.84), 75 to 80 feet upstream from the fill, showed that the water above the fill attained a height 16.55 feet higher than the water below the fill. These readings support the testimony of defendant’s witness, George M. Allen, who lived two hundred feet south of the fill, to the effect that the water was within one to one and a half feet below the top of the culvert on the lower side of the fill, plaintiff’s testimony to the effect that the water was 14, 15, or 16 feet over the top of the culvert on the upstream side of the fill, and the testimony of Francis Harris, a member of the volunteer fire department of Pennsboro, to the effect that [739]*739some time before Bunnells Run had reached its height on the night of June 24 and 25, 1950, “The water was up over the mouth of the culvert and was still raising”, so that this witness “couldn’t see the mouth of the culvert, it was completely covered up.” The high water marks on the inside walls of plaintiff’s residence showed that the water had reached a height of twenty-five and a half inches above the floor; and using this figure in connection with the sea level elevation on the walk at the front door of plaintiff’s house of 834.88 feet, the water level at the height of the flood was 837.77 feet above sea level at that point. Witness Allen also testified that there was a large volume of rainfall to the south of defendant’s culvert, and that the water reached a height of one and a half feet over U. S. Route No. 50 at the bridge below the fill, which latter condition may be accounted for by the fact that another run empties into Bunnells Run to the north of and at the pier of the highway bridge.

When the fill was originally constructed during the years 1854 to 1857, two pipes, the size and diameter of which do not appear in this record, were installed by the Northwestern Virginia Railroad Company, defendant’s predecessor, at which time the bottom land in this drainage basin from the upstream side of the fill to the forks of the run consisted largely of pasture and meadow land, having no buildings, paved streets or highways thereon. Shortly after the year 1915 there was gradually built on the land, composing the drainage basin of the run, paved streets, highways, and residence buildings, so that at the time of the rise of the waters of Bunnells Run on June 24 and 25, 1950, Church Street, Fream Street, Cross Street, and Raymond Street at the southerly end of the City of Pennsboro were paved and about eighty-five residence buildings had been constructed thereon.

No unusual flood of Bunnells Run is disclosed by this record from the time the' present culvert was constructed in 1895 until about the year 1918, at which time a heavy rainfall caused Bunnells Run to flood twelve or thirteen [740]*740houses on Church and Fream Streets, which gave rise to claims for damages against the defendant railroad company by a number of the property holders whose homes were flooded. Actions, instituted against the defendant for the alleged damages, were compromised before trial on the basis of fifty per cent of the claims. Another heavy rainfall, occurring during the year 1948, caused Bunnells Run to flood above the fill, resulting in an accumulation of water to a depth of 2% feet on Church Street and 18 inches in the home of Ben Collins, which faces on Church Street between Fream Street and Bunnells Run. In 1949 another heavy rainfall caused the flooding waters of Bunnells Run to cover Church Street to a depth of 10 to 12 inches; and other rainfalls occurring on frequent occasions caused the waters of the run to flood the land of one Avery Dodson, located north of the fill and south of Church Street.

About six o’clock on the night of June 24, 1950, it began to rain in Pennsboro and vicinity, which rain continued until about three o’clock on the following morning, with the heaviest rainfall occurring from nine o’clock on the night of the twenty-fourth until midnight, and from shortly after midnight until two o’clock on the morning of the twenty-fifth.

Plaintiff’s witness, Sula Riggs, who lived about 1750 feet above defendant’s culvert near the north end on the east side of Fream Street and slightly west of the forks of the run, testified that during the height of the flood of June 24 and 25, the current of Bunnells Run was going down Fream Street; that the water was quiet at the back of her house; and that one of her outhouses some distance up the left fork had water in it.

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Bluebook (online)
73 S.E.2d 793, 137 W. Va. 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riddle-v-baltimore-ohio-railroad-wva-1953.