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struction contract as "builder," the latter assuming the payment of the balance due for the engines according to the terms of the contract between Noots and the Hansen Company, and which sum of $9,120 was allowed as a part of the $20,000 payment required to be made on the signing of the construction contract.

We find in the latter contract not only no guaranty by Noots of the delivery by the Hansen Company of the engines within the time specified in the contract between him and that company, but no provision even tending to show that any of the parties had any such understanding. On the contrary, subdivision 9 of the construction contract expressly declares that

"The builder shall take from the manufacturer of the Skandia engines the usual guaranty as to material, workmanship and fuel consumption, which shall run in favor of the builder and his assigns. Such guaranty shall be by the builder assigned and delivered to the purchaser."

The clause just quoted is quite inconsistent with the theory that Noots guaranteed the delivery of the engines at any specified time, or at all; indeed, any more than that he guaranteed the material of which they were constructed, or their workmanship or fuel consumption.

[3] The further contention on the part of the plaintiffs in error that they were not made liable for any damage growing out of the nondelivery of the engines within the time specified for such delivery, based upon subdivision 13 of the construction contract, is, we think, also untenable. That provision is as follows:

"13. It is agreed between the parties hereto that if said schooner shall not be ready for delivery on July 15, 1917, and shall not be delivered on that date, unless by causes within the terms of this contract and delivery of the engines by the J. H. Hansen Company on the 7th of June, 1917, as defined by their contract, that the builder shall pay and will pay to the purchaser the sum of one hundred ($100.00) dollars per day for each and every day that such delivery shall be delayed beyond July 15, 1917, or beyond such postponed date of delivery as may be fixed by and within the terms of this contract, as liquidated damages for the loss of the use of this said schooner, and if the said builder shall deliver the said schooner before the 15th day of July, 1917, the purchaser will pay to the builder the sum of one hundred ($100.00) dollars per day for each and every day elapsing between the date of delivery and the said July 15, 1917."

It is insisted that the true and only meaning of the foregoing paragraph is that, if the defendants should fail to deliver the vessel by July 15, 1917, they would pay the purchaser $100 for each and every day that such delivery should be delayed beyond that specified day, unless such failure was the result of some act falling within the terms of the construction contract, "or by failure to receive delivery of the engines on June 7, 1917." Neither the clause last quoted nor anything of like effect is found in the construction contract, and it need hardly be said that courts have no authority to make contracts for parties. The agreement of these parties was that the delivery of the vessel. July 15, 1917, might be excused and the time extended "by causes. within the terms of this contract and delivery of the engines by the J. H. Hansen Company on the 7th of June, 1917, as defined by their contract." The words "and delivery" in the clause last quoted may have been intended for "nondelivery," in which event provision would

have been made for the contingency of delay in the delivery of the engines; but the parties themselves did not so declare, and we do not think the court has the power to make, by construction, that contract for them.

The points made on behalf of the cross-plaintiff in error have been carefully considered, and we are of the opinion that they are without substantial merit.

The judgment is affirmed.


SAME v. WASSON et al.

(Circuit Court of Appeals, Ninth Circuit. January 6, 1919.)

Nos. 3203, 3204.

1. WATERS AND WATER COURSES 179(6)—OVERFLOW-ACTION FOR DAMAGES. Evidence held to warrant submission to jury of question whether water which injured plaintiff's lands where obstructed by defendant's railroad embankment was from a natural watercourse or merely surface water.


The facts that water flowing down a channel comes from melting snow, and that there is a flow for only a few months in the spring, do not necessarily take away the character or elements of a "water course," where there is a well-defined and accustomed channel.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Water Course.]

In Error to the District Court of the United States for the Southern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.

Actions at law by Preston Royer and by W. J. Wasson and Mabel Wasson against the Oregon-Washington Railroad & Navigation Company. Judgments for plaintiffs, and defendant brings error. Affirmed.

A. C. Spencer and C. E. Cochran, both of Portland, Or. (James E. Fenton, of Portland, Or., of counsel), for plaintiff in error.

M. A. Langhorne, E. M. Hayden, and F. D. Metzger, all of Tacoma, Wash., and Lon Boyle, of Prosser, Wash., for defendants in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT, Circuit Judge. These were actions by landowners, plaintiffs below, against the railroad company, defendant below, to recover damages for injuries to property resulting, as alleged, from an overflow of the lands of the plaintiffs, caused by the construction of an embankment by the railroad company over and across an alleged water course known as Spring creek, and by placing in the alleged bed or channel of the alleged creek a pipe or drain which was insufficient to carry off the waters that flowed down through the creek at certain seasons of the year. The railroad company denied all damage, and, after trial to a jury, verdicts and judgments were in favor of plaintiffs, and the railroad company sued out writs of error. As the two cases

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 255 F.-56

were tried together, and present the same legal questions, they may be conveniently considered in one opinion.

[1] The contention of the railroad company, as embodied in a request for an instruction, is that the only justifiable conclusion from the evidence is that what the plaintiff below called the channel of Spring creek is nothing more than a drain for surface water resulting from melting snow in the drainage area above the lands affected, and that, except from the waters of such melting snow, Spring creek in its channel carries no water, and is dry for 11 months of the year, and that as a legal consequence the surface water became a "common enemy," against the flowage of which the landowner was obliged to defend himself. But the District Court declined to sustain such a position, and submitted the case to the jury upon the theory that Spring creek is a natural water course, and that the railroad company was bound to construct a culvert or to make other adequate provision to permit the passage of the waters flowing down at times of all ordinary freshets, but was not bound to anticipate or provide against unprecedented or unexpected floods. To test the ruling of the court, it becomes necessary to get a clear understanding of the physical situation.

At the time of the damage to the property of the plaintiffs below, the railroad ran westerly between Walla Walla and North Yakima, Wash., over and across a part of the land of the plaintiff Wasson and north of and near the land of the plaintiff Royer.

Spring creek has its origin in the Rattlesnake Hills, some 15 or 16 miles northwest from the lands of the plaintiffs. The upper limits of the head are in sections 25, 11, and 24; the creek runs generally southeasterly at the head, and bears southwesterly for 3 or 4 miles, then southeasterly for about 2 miles into the Yakima river. The general lay of the land from where Spring creek has its origin is rolling, but the creek is in a canyon for 14 or 15 miles, and until a short distance from the railroad right of way, where the ground spreads out flat; the point at which the creek begins to widen being about the north line of the southeast quarter of the southeast quarter of section 20. Up to that point the channel, though irregular in width and depth, is well defined, and drains 20,000 or 25,000 acres; the water coming down from various gulches into the Spring creek gulch. The bed of the creek is bridged at several places where the county roads cross it.

The resident engineer of the railroad company testified that he was well acquainted with the immediate country involved, and had prescribed the size of the culvert which was put in, and believed that a 48-inch diameter was sufficient to carry off the "normal flow of surface water that came down." He said that from the county road south of Starkey's place, which is in the southeast quarter of the southeast quarter of section 20, and in the course of Spring creek, there was a small rock dam, in addition to several other small obstructions in the channel above the Sunnyside dam, which was approximately 40 feet high; that after the water passed over the wasteway it came down in such volume "that the original channel was so small as to be unable to carry the water, and it overflowed and spread out over the land, forming two channels in Mr. Starkey's field, one marked on the map

(which was introduced in evidence) 'original channel,' and the other 'overflow channel.'" He described the water as passing on down to the next 40 below, which would be the southeast quarter of the southeast quarter of section 20, and said that "the channels came together again as a main channel, with the exception of the water spreading out to a considerable extent on the ground," that the water overflowed the greater part of the Starkey land, running entirely out of the channel, and then, as it flowed to the south line of section 20, it struck the other dam, which had been put in north of the county road, and again. spread out.

The fall from the source of the creek to where it crosses the railroad right of way is something over 2,000 feet. The only outlet from the valley is under the railroad tracks. The water which is caused by snow melting in the hills only flows during the spring. The amount of snow during a season varies from nothing to 18 inches. During seasons when the snow melts gradually, and there is no frost in the ground, the water is absorbed, and there is none in the creek, and when the ground is frozen, and the snow in the hills is melted by a chinook wind, there is water in the creek.

At the point where Spring creek runs under the right of way of the railroad company there has been a fill on each side of the creek, 6 to 8 feet deep. The fill extends from the creek about 600 feet east of the county road in section 28, where it passes from an embankment to a slight cut. The drain under the railroad track and within the right of way consisted of one 48-inch corrugated metal culvert, which was about 4 feet below the top of the track. When this culvert was put in, the engineer inquired of the residents then thereabouts as to the usual flowage of water down Spring creek, and also examined the land toward the foot of the Rattlesnake Hills, and estimated the flowage to be about 20 second feet.

About January 20, 1916, there were from 12 to 16 inches of snow. There was not much snow on the level lands, except where drifted into depressions, but in the hills there was a great deal. The ground was frozen, and the snow did not melt until the chinook wind commenced on January 20th, blowing only during the daytime, and lasting until January 23d. The snow melted very rapidly, causing a sudden rush of waters, which, when they arrived at the embankment of the railroad, destroyed the roadbed for a great distance, broke through a stretch of railroad track, went over the ties, and washed a deep hole through the railroad into the lands of plaintiffs.

On January 23d there was an additional snowfall of about 15 inches, and the channel of Spring creek was practically drifted full of snow. A second chinook wind came and partly melted the snow, and the snow and water together started to flow down; the snow congealing at the railroad track and forcing the water to spread. The results of the storms were overflows caused by the railroad embankment.

We think that the court was right in holding that under the facts Spring creek was a natural water course. The water which flowed through it came from snow melting in high hills, and for several miles flowed naturally through a well-defined channel between banks, down

to the point just above plaintiffs' lands, where dams or like artificial obstructions checked the course of the waters, and thus caused them to overflow their accustomed channel and to spread out, in part, into another channel, and to overflow the lands northwest of plaintiffs' lands, only, however, to flow together again in a single main channel, before reaching the railroad culvert, and thence to flow naturally to the Yakima river.

[2] The facts that the water which went down the channel came from melting snow, and that there was a flow for but a few months in the spring, do not necessarily take away the characteristics or elements of water course. In Reynolds v. McArthur, 27 U. S. (2 Pet.) 417, 7 L. Ed. 470, the Supreme Court recognized that a stream could acquir the name of a river in the channel of which at some seasons no water flows. In Borman v. Blackmon, 60 Or. 304, 118 Pac. 848, the court held that a stream fed by melting snows, which at regular seasons descends through long, deep gullies upon lands below, and on its onward flow carves out a distinct and well-defined channel, "which even to the casual glance bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial," is a water course. Justice Burnett, for the court, in applying these elements, said:

"After the stream has dried up, we can go upon the ground and say, 'Here it flowed; here is the track of the water; in this course the stream habitually runs.' This happens on the watershed in question, not from a cloudburst, but occurs every spring from the descent of the melted snow. The water of all streams is derived, directly or indirectly, from surface water which falls, in the beginning, from the clouds; but, whenever in its journey to the sea it flows in one continuous, well-marked channel, it becomes a water course, provided this regularly recurs at every returning season."

In Jaquez Ditch Co. et al. v. Garcia et al., 17 N. M. 160, 124 Pac. 891, the court quoted with approval from Harrington v. Demaris, 46 Or. 111, 77 Pac. 603, 82 Pac. 14, 1 L. R. A. (N. S.) 756, where it was held that a stream does not cease to be a water course, and become mere surface water, because at a certain point it spreads over a level meadow several rods in width, and flows for a distance without defined banks, before flowing again in a definite channel. In that case, after a careful review of many cases, it was held that where surface water in a region of bluffs seeks outlet through a gorge or ravine during the rainy season, and by its flow takes a definite and natural channel, and has always done so from time immemorial, such accustomed channel through which the water flows has the elements of a natural water course, although the flow of the water is not continuous and the size of the stream is small.

Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837, cited by plaintiff in error herein, is referred to as seeming to be in conflict with the rule applied by the court; but it is pointed out that in the Walker Case the obstruction or embankment complained of was 4 miles from the mouths of the arroyo, and that the water after leaving the arroyo, spread out and became surface or flood water.

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