1. A railroad company is not liable for floodings of private
land resulting from a condition of the railroad structure amounting
to a nuisance when the nuisance was created by its predecessor in
title, and where the injurious consequences occurred when the
railroad had been taken over and was being operated by the
government under the Federal Control Act. P.
271 U. S.
223.
2. A plaintiff who has brought and tried an action for damages
to his land upon the ground that the defendant was liable as a
tortfeasor cannot shift, on appeal, to a theory of contract
liability. P.
271 U. S.
227.
Reversed.
Page 271 U. S. 221
Certiorari to a judgment of the Circuit Court of West
Virginia,(which the Supreme Court of Appeals declined to review)
awarding damages against the railway for injuries to the land of
the plaintiff, Mullens, found to have resulted from obstruction and
diversion of a stream by a railroad embankment.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action in a state court in West Virginia to recover
for injuries to the plaintiff's land resulting from a nuisance
alleged to have been created and maintained by the defendant. The
action was begun June 14, 1921. The case stated in the complaint
was to the effect that the defendant constructed in 1904, and
operated up to the time of suit, a railroad through West Virginia,
a short section of which was located on a right of way acquired for
the purpose and extending laterally into a natural stream bounding
the plaintiff's land; that this section was constructed by filling
in and building up the outer part of the bed of the stream opposite
his land and placing the track on the embankment so made; that the
embankment and track narrowed the former channel, crowded the
current against the bank on the plaintiff's side and exposed his
land to overflow and injury, and that, on diverse occasions
thereafter, particularly in the years 1918 and 1919, this
obstruction caused the waters to wash away portions of the bank and
to overflow and injure his land.
The defendant interposed a plea putting in issue the allegations
in the complaint, and, by a further plea, insisted
Page 271 U. S. 222
that the road was under federal control from December 28, 1917,
to March 1, 1920, and that no liability attached to the defendant
for such of the injuries as occurred during that control.
The trial resulted in a verdict and judgment for the plaintiff,
and the supreme court of appeals of the state, although petitioned
by the defendant to review the judgment, declined so to do, thus
making the trial court the highest court of the state in which a
decision could be had.
American Ry. Express Co. v. Levee,
263 U. S. 19. The
case is here on writ of certiorari, and the question presented is
whether there was error in holding the defendant liable for
injuries done during federal control.
The case shown by the evidence differed from that stated in the
complaint. Affirmatively and without dispute, the proofs disclosed
that the railroad was not constructed by the defendant, but by
another railway company, and was purchased by the defendant in
1907, after it was completed and in full operation; that, after the
purchase, the defendant used the embankment and track in the bed of
the stream as an integral part of the road, just as it was used
before; that the plaintiff, although familiar with the situation,
made no complaint of this use or of the presence of the embankment
and track in that place; that, on December 28, 1917, the United
States took possession of the railroad and its appurtenances, and
from that time to March 1, 1920, operated and controlled the same
to the exclusion of the defendant; that during such operation and
control, the United States exercised the usual rights of an owner
by altering parts of the roadbed, widening tunnels, laying double
tracks along parts of the road, and using the property as best
suited the government's purposes. As respects the section in the
bed of the stream, the evidence showed that the United States made
no change therein, but continued the use theretofore made of it as
part of the road, and, as respects the
Page 271 U. S. 223
injuries done to the plaintiff's land, the evidence, taken most
favorably to him, disclosed that, while there was some cutting of
the bank on his side soon after the road was constructed and also
during the defendant's possession and operation, the chief injuries
occurred in February, 1918, and July, 1919, during federal control,
when, in the course of two unusual freshets, portions of the bank
were washed away and his land was overflowed and materially
injured.
At the conclusion of the evidence, the defendant, relying on
acts of Congress and proclamations of the President bearing on the
federal control, requested the court to charge the jury that the
defendant was not liable for the injuries occurring during such
control, and that, as to them, the finding and verdict must be for
the defendant. But the request was refused, and the defendant
excepted. If the request was well grounded in law, its refusal was
plainly prejudicial.
While the evidence may have admitted of a finding that the
embankment and track in the bed of the stream tended to obstruct
and divert the current in such way as to constitute a nuisance, it
affirmatively and indubitably precluded a finding that the
defendant constructed them or did more than use them as an integral
part of a completed road which it had purchased as a going concern
from a prior owner. Thus, there was no basis no which the defendant
could be charged with liability as the creator of the nuisance. If
liable at all, it was liable only because it continued the use to
which the embankment and track were put by its grantor. There has
been much contrariety of decision in the courts of the several
states as to whether a purchaser who merely continues a prior use
of such a structure may be charged at the instance of one who has
made no complaint or objection, with liability for maintaining a
nuisance. The question ordinarily is one of local law to be
resolved according to
Page 271 U. S. 224
local decisions, and, out of deference to the action of the
court below, we assume that, in West Virginia, a complaint or
objection is not deemed essential, although no decision on the
point by the Supreme Court of Appeals has been brought to our
attention. But here it was insisted, and the proofs conclusively
established, that the defendant's use ceased when federal control
began, and that the chief injuries occurred during the period of
that control. The questions of the defendant's legal relation to
the road and the operation thereof while under federal control and
of its liability for injuries occurring during that period involved
a consideration of the nature of that control and of the operation
and effect of federal statutes and proclamations bearing on the
subject. In short, they are federal questions.
By the Act of August 29, 1916, c. 418, 39 Stat. 645, Congress
empowered the President, in time of war, to take possession and
assume control of transportation systems and to utilize the same in
the transportation of troops, war material and equipment, and for
other needful or desirable purposes incident to such an emergency.
War with Germany was declared April 6, 1917, and with
Austria-Hungary December 7, 1917, and in both instances Congress
pledged all of the resources of the country to bring the conflict
to a successful termination. 40 Stat. 1, 429. Under a proclamation
declaring his purpose so to do, 40 Stat. 1733, the President took
possession, and assumed control at noon on December 28, 1917, of
various systems of transportation, including the defendant's
railroad and the appurtenances thereof, to the end that they might
be operated and utilized in transporting troops, war material and
equipment, and in performing other service in the national
interest, and he committed the possession, control, operation, and
utilization of such systems to a Director General designated by him
for the purpose. By the Act of March 21, 1918, c. 25, 40 Stat.
451,
Page 271 U. S. 225
Congress confirmed the President's action in thus taking over
the transportation systems, made provision for continuing such
federal control under the President's direction, and empowered him
to exercise his authority in that regard through agencies of his
selection. In General Order No. 50, issued October 28, 1918
(U.S.R.R. Co. Administration Bulletin No. 4, Revised, 334), which
recited that suits were being brought against railroad companies,
the roads of which were under federal control, on causes of action
arising during such control for which the companies were not
responsible, it was directed that actions and suits based on claims
for injuries to persons, damage to property, etc., growing out of
the possession, use, control, or operation of any railroad by the
Director General be brought against that officer, and not
otherwise.
We heretofore have considered the legislation, proclamation, and
order just recited, and have held that they provided for a complete
possession by the United States and contemplated a single and
effective control by federal authority to the exclusion of the
private owners,
Northern Pacific Ry. Co. v. North Dakota,
250 U. S. 135,
250 U. S. 148,
and that, during federal control, "no liability arising out of the
operation of these systems was imposed by the common law upon the
owner companies as their interest in and control over the systems
were completely suspended,"
Missouri Pacific R. Co. v.
Ault, 256 U. S. 554,
256 U. S. 557.
In the latter case, the contention was made that the Act of 1918
should be construed as subjecting the companies to liability for
acts or omissions of the agency exercising federal control,
notwithstanding they were deprived of all power over the
properties, because the just compensation to be paid to them would
include any loss resulting to them from such liability. But this
Court disposed of the contention by saying (p.
256 U. S.
559):
"Such a radical departure from the established concepts of legal
liability would at least approach the verge of constitutional
power.
Page 271 U. S. 226
It should not be made in the absence of compelling language. . .
. There is none such here."
And, turning to a provision in the Act of 1918 declaring
"carriers while under federal control" liable and suable, the Court
said (p.
256 U. S.
559):
"Here, the term 'carriers' was used as it is understood in
common speech, meaning the transportation systems, as distinguished
from the corporations owning or operating them."
And (p.
256 U. S.
561):
"This means, as a matter of law, that the government or its
agency for operation could be sued, for, under the existing law,
the legal person in control of the carrier was responsible for its
acts. . . . All doubt as to how suit should be brought was cleared
away by General Order No. 50, which required that it be against the
Director General by name."
In
Wabash Ry. Co. v. Elliott, 261 U.
S. 457,
261 U. S. 462,
the decision was to the same effect. In
North Carolina R. Co.
v. Lee, 260 U. S. 16, it
was held that the government operated the railroads during federal
control "not as lessee, but under a right in the nature of eminent
domain;" and in
Dupont de Nemours & Co. v. Davis,
264 U. S. 456,
264 U. S. 462,
it was added that: "In taking over and operating the railroad
systems of the country, the United States did so in its sovereign
capacity, as a war measure."
In principle, these decisions are determinative of the question
here presented. They show that federal control did not rest on a
conventional arrangement with the owner companies, but on an
exertion of supreme governmental power, and that the legislation,
proclamation, and order before recited contemplated a complete
separation of the companies from the roads while under such
control, and an absence of responsibility by the companies for
losses and injuries resulting from the use, operation, and
maintenance of the roads during that period.
When the United States took over this road, the embankment and
track in the bed of the stream were taken over as part of it, and
the defendant was deprived of all
Page 271 U. S. 227
power over them while they remained under federal control. Their
maintenance and use during that period were exclusively in the
hands of federal agents. If a duty rested on anyone to make any
change in them, it rested on the federal agents, and if maintaining
and using them without change was a wrong against the plaintiff, it
was a wrong committed by those agents, for which no liability
attached to the defendant.
The plaintiff relies on cases holding the creator of a nuisance
liable for injuries resulting therefrom after he had transferred
the premises to another by need or lease; but they are not in
point. They proceed on the theory that, by such a transfer, the
creator expressly or impliedly affirms the right of the transferee
to continue the prior situation or use, and also voluntarily
disables himself from correcting or abating the same. Here, the
defendant had neither created the nuisance nor made a voluntary
transfer of the premises. The United States, as we have seen, came
into possession not as a conventional transferee, but by an
exercise of governmental power in which the defendant had no
voice.
The plaintiff also seeks to support the judgment on the theory
that the defendant company was under a contract obligation to
protect his land from injury, and, to make out that obligation, he
refers to a clause in the deed whereby the defendant's grantor
acquired the right of way and to a clause in the deed whereby the
defendant afterwards acquired the completed road. But he is not in
a position to urge this contention here. The case stated in the
complaint was distinctly in tort. There was no mention of a
contract obligation, nor any reference to either of the two deeds.
And when the court came to charge the jury, the plaintiff tendered
and the court included in its charge various instructions wherein
the case was treated, in keeping with the complaint, as one to
recover damages for an alleged tortious creation and continuance of
a nuisance. After bringing and trying the case on that theory,
the
Page 271 U. S. 228
plaintiff cannot be permitted on this review to change to
another which the defendant was not required to meet below. Other
objections to the contract theory are suggested, but they need not
be considered.
We conclude that the court should have instructed the jury, as
it was requested to do, that the defendant was not liable for the
injuries occurring during federal control.
Judgment reversed.