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Show FLOODFLOWS 79 Taking into consideration the heavy rainfall which is normal in the area involved in this case, it is impossible to conclude from the evidence that that which immediately preceded the disaster was at all extraordinary. It was a heavy rain, but not of unprecedented proportions. In its occurrence and magnitude, it might have been anticipated by a person of reasonable prudence. * * * Extraordinary floods.- In this category, the Texas Supreme Court has placed "an extraordinary and unprecedented flood * * * of such a size as had not been known or heard of before, and which a person of ordinary care and prudence, under the circumstances, could not have foreseen or antici- pated, * * * ,"29S To the same effect, in an Oregon case, it is said that "An extraordinary flood is one 'whose comings are not foreshadowed by the usual course of nature, and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight.' "296 In accord with the foregoing is an early Kansas statement that in constructing railway lines across watercourses, railroads were not bound to anticipate extraordinary changes of seasons, nor unusual freshets or rainfalls, that could not be detected by a skillful and careful appraisal of the local situation, "nor to guard against every possible contingency."297 Criteria In a North Dakota case decided in 1950, the undisputed testimony was that the waters of the flood in litigation were greater in volume and rose higher than had ever before occurred within the recollection or knowledge of any of the witnesses, some of whom had been living in the vicinity for 40 or more years.298 A United States Weather Bureau published report received in evidence tended to corroborate this testimony; but it also showed that floods on this and other tributaries of the Missouri River in this area were not unusual, particularly at the time of the spring runoff, and that ice jams or gorges were often formed. Also, one witness testified that a few years prior to the instant flood there was another almost as great as this one. The court said that: In passing upon the question of whether a flood is extraordinary and unprecedented it is proper and necessary to consider the topography of the area traversed and drained by the flooded stream; the climatic conditions ordinarily prevailing there; whether the stream is subject to ice jams during the spring run-off; the character of tributary streams as to their volume and velocity; the laws of hydraulics known to the ordinary man; the extent of 295 Fort Worth & D. C. Ry. v. Kiel, 143 Tex. 601,605-606, 187 S. W. (2d) 371 (1945). 296Schweiger v. Solbeck, 191 Oreg. 454, 464, 230 Pac. (2d) 195 (1951), quoting from 56 Am. Jur. Waters § 91 (1945). 297 Union Trust Co. v. Cuppy, 26 Kans. 754, 762-763 (1882). 298Ferderer v. Northern Pac. Ry., 77 N. Dak. 169,181-182,42 N.W. (2d) 216 (1950). |
