Railroad Legal Issues and Resources (2015)

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27 F. Change in Topography Resulting in Changes in Drainage Does 266 Not Modify a Railroad’s Duty to Provide Proper Drainage In City of Atlanta v. Kleber,102 the Supreme Court of Georgia held that Norfolk Southern was not liable to homeowners for water damage to their property caused by a drainage pipe and culvert. Changes in the topography of the surrounding neighborhood did not give rise to a railroad duty to change the drainage ditch and pipe that were installed properly in the 1970s.103 Article 267 G. Surface Water Rules in Arkansas 267 A law review article that discusses the issue of diffused surface water in Arkansas argues that Arkansas, as have many other states, should adopt a “reasonable use rule” pursuant to which “liability is determined by the reasonableness of the property owner’s actions [that] altered the surface water flow.”104 VII. CHANGE OF GRADE 269 A. Introduction 269 This part of the digest discusses whether damages are recoverable for grade changes, usually at highway–railway crossings. Sections B and C discuss statutes and cases applicable to changes of grade by municipalities and railroads. Section D discusses liability when a change of grade was for a public use but the railroad contractually agreed with a municipality to be responsible for damages. Section E reviews a law review article that discusses when a landowner is entitled to compensation when the owner’s abutting property is taken or damaged because of a change of grade. Section F addresses liability to private land owners when access to their property is altered or obstructed by a change of grade. Statutes 269 B. Recovery of Damages Because of a Change of Grade 269 Section B reviews the statutes in several states that address the issue of damages for property taken or damaged because of a change of grade, as well as other matters. 102 285 Ga. 413, 677 S.E.2d 134, 138 (Ga. 2009). 103 Id., 285 Ga. at 418, 677 S.E.2d at 138. 104 W. Looney, Diffused Surface Water in Arkansas: Is it Time for a New Rule?, 18 U. ARK. LITTLE ROCK L.J. 393, 406–07 (1996).

28 Cases 270 C. Liability of Railroads for a Taking or Damaging of an Owner’s 270 Property Caused by a Change of Grade In a 1915 case, Bennett v. Winston-Salem South-Bound Ry. Co.,105 the North Carolina Supreme Court held that unless the work was performed negligently, a property owner may not recover for damage to his property caused by a change of grade that was authorized by the state or a political subdivision thereof because compensation was paid to the landowner when the property was taken initially. D. Contracts Between States or their Local Governments and 272 Railroads for Damages Caused by a Change of Grade In Rigney v. New York Cent. & H. R. R. Co.,106 the New York Court of Appeals held that, if a railroad and a municipality agree that the railroad will be liable for damage to property caused by a change of grade, assuming certain conditions are met, a property owner may sue the railroad rather than the municipality for damages. Articles 273 E. History of Liability for a Taking of or Damage to Property 273 As explained by an article in the Vanderbilt Law Review that traces the liability under state constitutions for government takings of property, by 1912 over half of the then 48 states had adopted a constitutional amendment requiring the payment of just compensation when property was taken or damaged rather than just when property was taken.107 F. Liability for a Change in a Landowner’s Access to Property Caused 274 by a Change of Grade A recent law review article that discusses government regulation of access to roads and highways argues that only when a property owner’s access to his or her land is obstructed does the property owner have a claim for just compensation.108 105 170 N.C. 389, 391, 87 S.E. 133, 135 (N.C. 1915). 106 217 N.Y. 31, 37, 111 N.E. 226, 228 (1916). 107 Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57, 115 (1999). 108 Michael L. Stokes, Access Management: Balancing Public and Private Rights in the Modern “Commons” of the Roadway, 60 CLEV. ST. L. REV. 585, 654 (2012).