BALDWIN.V. NEAL 673 BALDWIN V. NEAL • • 4-3787 Opinion delivered March 25, 1935. • 1. WATERS • AND WATERCOURSES—SURFACE WATER—DISCHARGE. A. railroad building an embankment which impedes the flow of water in the event of excessive rainfall must provide passageways to permit the outflow of surface water, so as to ,prevent lower lands from being overflowed to a greater extent than they would have been prior to construction of the embankment. 2. LIMITATION OF ACTIONS—NUISANCE.—Where a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage, is original, and may be fully compensated at once, and the statute begins to run from , the construction. 3. LIMITATION OF ACTIONS—NUISANCE.—Where a nuisance is permanent in character, and its construction and continuance Are not necessarily injurious, there may be as many successive recov-
674 BALDWIN V. NEAL. [190 eries as there are successive injuries, and the statute begins to run from the happening of an injury. 4. LIMITATION OF ACTIONS—OBSTRUCTION OF SURFACE WATER.—A cause of action against a railroad for overflow of Subjacent land where, after a heavy rainfall, water was impounded by defendant's embankments, and brOke through the embankment and flooded plaintiff's land, the statute began to run. from. the time ihe injury occurreil. 5. RAILROADS—LIABILITY OF RECEIVERS.—The liability of a railroad for damages for overflowing lands as result of failing to maintain sufficient openings for surface water became the liability of its trustees in bankruptcy who took over the road prior to the injury. 6. BANKRUPTCY—LEAVE OF COURT TO SUE TRUSTEES.—A suit for damage to plaintiffs' lands, resulting from the overflow thereof caused by a railroad's failure to maintain sufficient outldis in its embankments, could be brought against - the railroad's trustees in bankruptcy without obtaining authority to sue from the bankruptcy. court. Appeal from. Crawford Circuit Court ; • j. 0. Kin-cannon„Judge ; affirmed. Thos. B. Pryor and W. L. Curtis, for appellants. Partain & Agee,. for appellees. J. In this cause the plaintiffs -filed thdir suit in the Crawford Circuit Court on the 7th day of June, . 1934, alleging ownership of the DA of NW 1 / 4 and WI/. of NE1/4, section 7, township 9 north, range 30 west, Crawford County, Arkansas. It is also alleged that on the 14th of May, 1933, the defendants, L. W. Baldwin and Guy A. Thompson, trustees in bankruptcy, for tbe Missouri Pacific Railroad .Company, a bankrupt, operated the railway along and through the lands belonging to the plaintiffs, and that on said line of railway there was a railroad dump and trestles, and that prior to said date the line of said railway had -been- sci carelessly and negligently built and maintained that there were insufficient openings and culverts under the tracks and.across their right-of-way and under the dump of said railroad and tracks, north of the above described lands, to carry and permit the escape of water coming through Clear Creek and the valley adjacent thereto, and that said openings, formerly under the said railway, had been carelessly and negligently closed up
ARK.] BALDWIN V. NEAL. 675 and filled up, so as ' to form obstructions in waterways and outlets, leaving small, but inadequate passageways to permit the escape of water that might accumulate in said valley north of, or on the upper side of the said railroad, and that said railway and dump were such as to interfere with the natural drainage and water courses of - the said Clear Creek, and the valley in which , it is located, to such an extent that On the 14th day . of May, 1933, a heavy rain having fallen in the valley in which Clear Creek runs, the water was iMpounded, 6n the north side of the said railroad track, and, being nnable to escape or pass through the openings ' left by the railroad company, in said railroad dump, backed up over lands riorth of and Adjacent to the railroad arid finally broke through the railroad embankment or dump and from that point ran out over the fields and lands of the plaintiffs, destroying crops growing•thereon, washing away and destroying the sOil of said lands, and also that it washed and carried . upon the said lands great quantities of rocks, gravel and other debris, to • such an extent as to destr6fthe usefulness of said lands as farni property. The complaint also alleged that on the 1st day of April, 1933, L. W. Baldwin and Guy A. Thompson Were, by the United States District Court fOr the Eastern District . of Missouri, -duly ' appointed as trristees' in — bankruptcy for the said railroad and that they were the duly constituted, qualified and acting trustees of the corporation during all of the times mentioned . in the complaint. The trustees filed what they designated as a demur-rer to the 'said complaint, pleading facts 'in the so.-called demurrer, but challenging the rights of plaintiffs to sue these trustees in bankruptcy without having first procured permiSsion from the court appointing them, .and pleading . alko that the complaint showed . upon its face that, if the plaintiffs had been damaged, as alleged in the complaint, their cause of action was against the railroad company and not against the trusteeS. The defendants prayed for dismissal . of the Suit. • The demurrer being overruled, defendants filed their answer, wherein they denied all of the substantial allegations of the complaint, but pleaded no affirmatiVe defense.
676 BALDWIN V. NEAL. [190 Upon the trial of this cause the judgment was had for plaintiffs, and it is from this judgment that this ap, peal has been taken. • - • There is a considerable volume of testimony in this record, but the questions raised for our consideration are such that it will be necessary to state •very little of .the said testimony in a determination of the issues presented. . Some essential facts necessary to bostated•are • to the effect that the railroad dump interfered with the natural water course, which was formerly on the, east side of the farm next to the hill. The direction of the natural drainage was southeast. If the• water had been permitted to go according to the natural drainage, and without having been retarded . or impeded by the railroad . . dump, it would have spread out and would have gone over the land, but . without the force and .volume that• followed the- breaking of the embankment. The natural opening or passageway for the water had.been closed since about 1923. This was _ an opening about 90 feet long under, the railroad tracks. When it was closed at that time, there was left of the, opening a concrete -box or space about. four •y five feet, through which, the accumulated water should, pass.. • . . • . • • :..Witnesses testified,.who•had observed •the high water of 1888 and 1895, and 1927, and perhaps on other. .occasions. It was a. disputed question- of fact as to whether the, water in 1933 was higher than on the former occasions of high water. . It was urged also by tbe appellants that the • embankment. for the .highway, built north of the . railroad, changed conditions from what they were many years ago, and that this brought about some new factors which helped to cause the damage sued for in this case. We think it is unnecessary, however, to set • forth any substantial part of this testimony, either as to the location of ,the highway, or the necessity for passageways under it to permit the outflow of water, or to argue the possible effects of the highway, for the reason that a substantial-number of witnesses testified that in places the water was several feet deep . over the highway. Therefore without regard to its method of construction or the. pas,
ARK.] BALDWIN V. NEAL.; 677: sageways under it, we are unable,.by any analysis of the testimony before us to determine in what manner the location of the highway, or the method in . which it was constructed, affected the conditions as they existed at. the points upon the railroad .embankment, where the break occurred,, resulting in the . damage. It was not the duty of the railroad . company to build an embankment that would, hold, fast the floodwaters and prevent them from flowing .over these lands, but since its embankment had been built so as to Impede or-retard the flow of water, in the event of excessive rainfall, it was the duty of the railroad company to provide such passageways as would permit the_ outflow of water, thereby preventing surrounding lands from being overflowed to .any, greater degree or extent than they were. prior to the building or filling in of the embankment. At the time the railroad company closed the ninety-foot passageway under its track, by filling in , with rock and dirt, it was its duty to- leave such passageways as . to allow for the flow, of floodwaters usually, or occasionally passing through. this. valley, and it was evidently the intention of the railroad company, in so filling the said passageway under the trestle, that this fill should be a Per-. manent one, and the opening left therein, four . by five feet, was intended as -the outlet for water that might accumulate at that . point. Had the railroad company failed in this duty and built its embankment without openings or passageways for water at this point, the injury would have been original, at least, in so far as. damage . might. have followed from back-waters. The law applicable to tbis case is clearly stated in the case of . St. L. I..M. & S. R. Co. v. Biggs, 52 -Ark. 240, 244, 12 S. W. 331. .We: there said : "Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be :at once fully compensated. In such case the statute of limitations . begins to run upon the construction of the nuisance. But when such structure is permanent in its character, and its sconstruction and continuance are not necessarily injurious, but may
678 BALDWIN V. NEAL. [190 or may not bo so, the injury to be compensated in a suit is only the damage which has happened; and tbere may be as many Successive recoveries as there are successive injuries. In such ease the statute of limitations begins to run from the happening of the injury complained of:" Supporting this• principle a're citations of authority . unnecessary to repeat here. We recently had occasion to review this phase of the law in the case of Daniels. v. Batesville, 189 Ark 1127, 76 S. W. (2d) 309, delivered December 3, 1934, in which we quoted, with approval, the foregoing paragraph froM the Biggs case, supra. .• It will be observed from examination of the foregoing pleadings that the plaintiffs filed this suit upon the theory set out in the Biggs case,—that, although the structure made by the railroad company in filling in or closing up the trestle under the railroad track was permanent in character; yet it was not a't that time necessarily injurious ; that it might, or might pot, at softie time become so. : The defendants, or . appellants here, joined issue upon that one proposition *and did not then, or does not yet, attempt to say that the• darriage was 'original, except a's they infereritiallY argue by the demurrer and by cases cited. Appellants have not by any affirmative plea availed themselves of the contention that the'injury was original, beginning at the time of the filling in of the passageway. The issues have been joined upon the one theory,—that where the nuisance is one permanent in its character, but which may or may riot cause injury, dependent upon conditions that may occur or happen after . the construction of the nuisance. In such cases the law is well settled that. there may be as many successive recoveries as there are recurring injUries resulting from the faulty construction however permanent in . form it may have been. The above and foregoing statements of the law, applicable in cases of this kind, iS the answer to the questions raised by the appellants, not only in the-demurrer, but also by several of their instructions, that is, that the damage resulting was caused by the railroad company
ARK.] SAIWWIN V. NEAL. 679 prior to the time that the trustees sued herein took charge of the said company and began to operate it. The cause of action did not exist until the injury occurred, though the faulty con g truction•was a constant or potential Threat or menace, whichmight or might not result ih.injury . at some time, depenclent; of course, upOn conditions such as might prevail at- any time after the completed structure had -been built. The trustees took the 'road in the eonditiowim which they found it and prior fO The tithe • Of , the resnitiiig daMage„ They :tookit with: , this , potehtial liability in existence, a . cohclitiOri whicll might result in ;injury, or which might continue indefinitely without any 'cause of •action'acertiing; . but , such That they 'Might becoMe. liable for- as a- part of their expense of . admihistratioh .. of the property. This must *fieeeSs grily be true.' They took the property without liability' on -this account; , but liability followed the injury, and this was part of the obligations assumed by them at the instant they took. charge. It must. necessarily follow from the foregoing that the court was correct in overruling the demtrrer and also that the court was corrects in refusing.to •corisider this . same . proposition, in the: several instructions offered -by . the appellants .seeking.!to differentiate the liability„Of the railroad, which hadnever accrued;• from ' that . of the trustees, when'their. ,did .acCruer Although we are- not •favorethih. -this. case with any judgment or recital of.powers:of the trustee g of the railroad *company, we. understand such tru gtees are more than mere naked custodians,of the. property. • *They , operate the railway system in order to -preserve it, much -as receivers would. , Therefore no special authority to sue was hecegsary. General authority exists , under . th'elaw. . Title 28, USCA, p. 212; §' 125: , Since . the -,fuegoing .diopose$ of the vital matters on this appeal, it,.would Undtily:extend this discussion to treat . .all alleged.. errors separately., We have duly considered thew; and find no error. *,. Affirmed. • ;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.