Action for Damages

- Limitations. In the case of Hatch v. Keokuk & D. M. R. Co., decided by the Supreme Court of Iowa June 8, 1887, an opening was made in an embankment, near where the surface water formerly found its outlet, at the request of the proprietor of the lands adjoining on each side of the track, but was designed simply as a cattle passage, and not as an outlet for water. In an action against the railroad company for causing the surface water to overflow plaintiff's ground situated at some distance from the roadbed, held, that an action would lie against the company as for a failure to maintain a sufficient outlet for water, but that the embankment must be treated as a solid, permanent structure; that plaintiff's right of action accrued when the embankment was made, or as soon as it was discovered that it injured plaintiff's lands; and that the statute of limitations commenced to run from such time.

In this case the appellate contended, that "if the embankment had been solid throughout, so as to necessarily prevent the passage of the water, then the injury would have been permanent, and the damages entire, and would have been done at the time the embankment was put in. But the embankment was not solid. An opening was made in the embankment near where the water formerly found its outlet; but the defendant neglected to make and keep it sufficient, when defendant could have made the outlet sufficient at a reasonable expenditure. The injury was the neglect to make the outlet sufficient, and there is no presumption that this neglect would continue. If the defendant had furnished no passage whatever for the water, it would have presented a different question."

The court say, "Now, this reasoning would be a sufficient answer to the position of appellant if the defendant did in fact attempt to make a water-way through its embankment. If such was the fact, the case would probably be within the rule announced in Drake v. Chicago, R. I., etc., R. Co., 63 Iowa, 302; s. c., 19 N. W. Rep. 215. But the evidence shows, without contradiction, that, when the railroad was constructed, one Adam Hine was the owner of the land through which it was built. He owned the land on both sides of the right of way; and at his instance, and by his procurement, the company put in piling, and laid the track upon trestle-work for a sufficient space to allow cattle to pass from one field into the other. It was not designed as an outlet for water, was not adapted to that purpose, and the proof shows that it is not practicable, by excavation, to make a water-way of it. It appears to us that the undisputed facts of the case bring it fully within the rule of the cases of Stodghill v. Chicago, B., etc., R. Co., 53 Iowa, 341; and Van Orsdel v. Burlington, C. R. & N. R. Co., 56 Iowa, 470.'

HANNIBAL & ST. JOSEPH R. Co.

ย.

MISSOURI RIVER PACKET Co.

(United States Supreme Court, March 19, 1888.)

Railroad Bridge - Measurement of Span Navigable River.- Under the Act of Congress of July 25, 1886, authorizing the construction of a bridge across the Missouri River at Kansas City, but providing that such bridge, if a draw-bridge, shall be built "with spans of not less than 160 feet in length in

the clear on each side of the central or pivot pier of the draw, and the pier of said bridge shall be parallel with the current of the river," the distance of the spans must be obtained by measuring along a line between the piers, drawn perpendicularly to the faces of the piers and the current of the river; and a bridge measuring less than 160 feet between the piers, so calculated, although having a span of 160 feet measuring along the line of the bridge, is not a lawful structure.

Same Jurisdiction of United States Supreme Court - Federal Question. -The fact that a State court decided, in an action for damages sustained by vessels in navigating the Missouri River, that a railroad bridge across such river had not been built as required by the Act of Congress authorizing its construction, rendered the railroad companies liable, irrespective of the question whether the improper construction caused the accident, does not present any federal question for the consideration of the United States Supreme Court.

ERROR to the Supreme Court of the State of Missouri.

Action to recover damages for injuries sustained by plaintiff's vessels while navigating the River Missouri, in consequence of the improper construction of a bridge belonging to the defendThe opinion states the case.

ant.

Wirt Dexter and John J. Herrick for plaintiff in error.

Sanford B. Ladd and John C. Gage for defendant in error.

pleadings.

LAMAR, J. This is a writ of error to the Supreme Court of the State of Missouri to review a judgment of that court (20 Am. & Eng. R. R. Cas. 275) affirming a judgment of Facts and the Circuit Court of Jackson County in said State against the plaintiff in error. The action was brought in February, 1875, in the Circuit Court of Jackson County, by the Missouri River Packet Company, plaintiff below, against the Hannibal & St. Joseph Railroad Company, defendant below, to recover damages for injuries done to two of the plaintiff's steamboats by a railroad bridge, which had been erected and maintained by defendant over the Missouri River at Kansas City, Mo., the piers of which, and two certain structures connected therewith, it is alleged unlawfully obstructed the navigation of said river. The petition contained two counts, the first of which was as follows: "Plaintiff states that it is, and for the five years last past has been, a corporation organized and created under and by virtue of the laws of the State of Missouri, and during said period has been and still is the owner and proprietor of numerous steamboats, including the steamboat named 'Alice,' hereinafter mentioned, with which it has, as such corporation, during said period been engaged in navigating the waters of the Missouri River, and conveying and transporting by means thereof passengers and freight between the various towns and cities situated on the banks of said river in the States of Missouri and Kansas. That the defendant is, and for the last

twenty years has been, a railroad corporation organized under and by virtue of the laws of the State of Missouri. That the Missouri River, for a long distance above the City of Kansas, in the county of Jackson and State of Missouri, and below said city to the mouth of said river, is a navigable stream; that prior to the fourth day of March, 1874, the defendant had erected, and prior thereto and on said day did keep and maintain, in the said river and the channel thereof, near the southern bank thereof, and near the foot of the street known as Broadway, in said city of Kansas, a certain structure composed of heavy timbers and lumber fastened together; and long prior to said day the defendant had erected, kept, and maintained, and did on said day keep and maintain, in the channel of said river, in a point in said Jackson County and opposite said city of Kansas, nearer the centre of said river than the structure first above-named, a certain other structure, to wit, a crib or box built of heavy timbers filled with stone, which said crib or box extended from the bed of said river upward to a height of thirty feet or more above the surface thereof; that both of said structures were and always have been obstacles in the way of vessels passing by the same up and down said river, and have prevented and rendered the navigation of said river dangerous and unsafe; that said structures were so erected, kept, and maintained by the defendant wrongfully, wilfully, and in flagrant disregard and violation of the rights of plaintiff and others, to the free and unobstructed use of said river as a highway of commerce; that before the erection of said structures the current of said river, at and above and below the point where the same were located and erected, had been in a line nearly parallel to the faces of said structure, and the navigation of the same easy and safe. But plaintiff states that the structure first above mentioned had, on said fourth day of March, 1874, caused the current of the river at that point to change, so that it rushed with great velocity from the point of the location of said structure in a direction nearly at right angles to its former course towards and against said crib or box. And plaintiff states that on said fourth day of March, 1874, it was, in the course of its business, navigating said river with its said steamboat 'Alice,' and while attempting, in the exercise of due care and caution, to run said boat by and between said structures, said boat was, without any fault of this plaintiff, by the current of the river so changed as aforesaid, hurled violently against said crib or box, and the water-wheel, wheel-house, and other parts of said boat broken, injured, and damaged. That plaintiff was compelled to, and did, expend large sums of money in repairing said injuries to said boat, and was, on account of the injuries thereto, wholly deprived of the use of the

same and of the earnings thereof for the period of thirteen days, to plaintiff's damage in the sum of twenty-five hundred dollars, for which, with interest from the first day of April, 1874, plaintiff prays judgment against the defendant." The second count was in substantially the same form, and alleged an injury to the 'St. Luke,' another of plaintiff's vessels, occurring on the fifteenth day of September, 1874, and prayed judgment on account thereof in the sum of $3,000. To this petition the defendant below first interposed a plea to the jurisdiction of the court, alleging that the structures complained of, and each of them, were at the time of the injuries alleged in plaintiff's petition, and still are, a part of a bridge across the Missouri River at Kansas City, authorized by the Act of Congress approved July 25, 1866, and constructed under and in accordance with the terms and provisions of said Act by the Kansas City & Cameron Railroad Company, of which the defendant company below is the successor; that said bridge was wholly situated at the time of the injuries alleged in plaintiff's petition, and still is wholly situated, within the jurisdiction of the District Court of the United States for the western district of Missouri, and that, by reason of the premises stated, said District Court has exclusive jurisdiction over the subject-matter of this action. This plea having been overruled by the court, and exceptions duly saved, the defendant answered. The answer consisted of (1) a general denial, and (2) a special defence, which latter was pleaded as a full and complete bar to the cause of action alleged in the petition, and is in substance as follows: That at the time of the injury complained of in plaintiff's petition, the defendant was, for a long time prior thereto had been, and still is, a corporation duly organized under the laws of the State of Missouri, and as such corporation, acting as it was authorized to do by the terms of its charter, it had constructed a railroad from the town of Hannibal, in the State of Missouri, to the town of St. Joseph, in said State, and has been ever since maintaining and operating said railroad; that the Kansas City & Cameron Railroad Company, a corporation duly organized under the laws of the State of Missouri, as it was authorized to do by the terms of its charter, had constructed a railroad from the north bank of the Missouri River, opposite said city of Kansas, to Cameron, on the Hannibal & St. Joseph Railroad; that Congress, by an Act approved July 25, 1866, authorized the construction of a bridge across the Missouri River at or near Kansas City, and the Kansas City & Cameron Railroad Company, availing itself of this privilege, between the passage of said Act of Congress, and the fourth day of July, 1869, did construct such bridge at Kansas City; that the Kansas City & Cameron Railroad Company afterwards, to wit, on the fourth day of Febru

ary 1870, consolidated with the defendant company, whereby the defendant became the owner and proprietor of said bridge; that said bridge was and is a pivot draw-bridge, with a draw over the main channel of said Missouri River at an accessible and navigable point, and with spans of 160 feet in the clear on each side of the pivot-pier of the draw, and the next adjoining spans to the draw were and are 30 feet above low-water mark, and 10 feet above high-water mark, measuring to the bottom chord of said 'bridge, and the piers of said bridge were, at the times of location and construction thereof, parallel with the current of the said river; that the obstacles and obstructions (the structures) described in plaintiff's petition, and each of them, were at that time, and still are, parts and parcels of said bridge, and were and are necessary to the safe and secure maintenance of said bridge; that said bridge, ever since its completion, has been a post route; and that, by reason of the premises aforesaid, said bridge, ever since its completion, has been and still is a lawful structure; and, if plaintiff has sustained any damage in consequence thereof, it has been without any fault on the part of defendant, and the defendant is not legally liable therefor. Plaintiff in its reply specifically denied every material allegation set up in the special defence of the defendant; and upon this state of the pleadings the case was tried by a jury, resulting in a verdict for plaintiff below on the first count in its petition, for $2,400, and on the second for $2,900, in all, $5,300, upon which judgment was rendered. Plaintiff thereupon excepted, and appealed to the Supreme Court of the State of Missouri, relying mainly upon the question of jurisdiction in the court below, and upon certain alleged improper and illegal instructions given to the jury. The Supreme Court of the State, upon the questions material to a review of the case by this court, held, (1) that the Circuit Court of Jackson County, in which this action was commenced, had concurrent jurisdiction with the District Court of the United States for the western district of Missouri in the case, and that therefore the plea to the jurisdiction was properly overruled by the Circuit Court; (2) that, while the piers of the bridge were constructed parallel with the current of the river, as required by the Act of Congress, in determining whether the spans of the bridge on each side of the pivot-pier were 160 feet in length in the clear, as required by the Act, the measurement should be made at right angles with the current, and not along the structure itself, or on the line of the structure, and, inasmuch as the spans so measured were but 153 feet and a fraction in length, that therefore the structure causing the accident was not a lawful one.

The Act of Congress approved July 25, 1866, giving permis34 A. & E. R. Cas. — 11.