M. T. Woods, Sioux Falls, S. D., for appellant.

Warren W. May, Pierre, S. D., for appellee.

Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH,* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The controversy before us arises out of damages suffered by a train of the plaintiff Chicago and North Western Railway Company (hereafter the railroad) due to a washout of its tracks and subsequent derailment of its train.

On the night of June 9, 1971, the area involved suffered, in a short period, an extremely heavy downpour of rain. It was of such intensity that it was characterized by one witness as the "hardest rain he had ever seen" in a lifetime in South Dakota1 and by another as one that might occur in a period from once in a hundred years to once in a thousand, depending upon the accuracy of the measurements made of the quantity of the downpour.2 As a result there was a widespread flooding of the area with water from many sources,3 including the Tyler dam, which breached. This dam had been built by Mr. Tyler on his ranch for the control of erosion and was located north of the line of the railroad. The train involved, traversing the flooded area, was derailed, a bridge torn out, and cars and locomotives severely damaged. The railroad brought this action against Mr. Tyler for damages to the extent of over $147,000. A jury verdict in defendant's favor resulted, with subsequent appeal to this court.

The issues presented to us by the appellant relate solely to the court's instructions, and they, in turn, relate to the substantive law of South Dakota respecting absolute liability (the so-called rule of Rylands v. Fletcher4), nuisance, and so-called "Acts of God."It was the theory of the railroad that there was absolute liability on defendant Tyler's part under the Rylands v. Fletcher rule,5 that the dam was negligently constructed and maintained, and (independently thereof) that it was a nuisance, making it unnecessary for the railroad to prove Tyler's negligence, thus coming in full circle back to the theory upon which Rylands is based.6 The defendant, for his part, denied the applicability of the Rylands rule, under South Dakota law, to the facts at bar, denied his own negligence, asserted contributory negligence in the operation of the train, rejected the nuisance theory, and argued that an Act of God was solely responsible for the situation presented.

The District Court denied the applicability of the Rylands rule upon plaintiff's motion for directed verdict, holding that although the South Dakota Supreme Court had considered the Rylands rule in two cases7 it had neither adopted nor rejected such rule and, in any event, that the Rylands rule urged by the railroad was "not applicable to the facts in this situation."

We agree. Although it has been said with respect to the English cases involving the Rylands rule that from such "welter of cases it is impossible to extract any consistent principle"8 the American view has, according to a distinguished student, reached the position that the rule is applied "only to the thing out of place, the abnormally dangerous condition or activity which is not a 'natural' one where it is."9 Thus the storage of water in an area of sparse rainfall was held, in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936) to be "a natural or necessary and common use of the land" and we note, as well, the use of this concept by the South Dakota court in Midwest Oil Co. v. City of Aberdeen, supra, where, in denying absolute liability sought to be imposed upon the city as a result of a break in a water main, the court pointed out that "Water mains are in universal use in cities."10 Similarly here. The land owner did no more than construct a dam, normally empty, across a dry watercourse for erosion purposes. The record discloses that the construction of dams in this area for similar purposes is, if not a common practice, certainly not unusual. "I am a soil conservation technician," testified one witness.11 "My job is concerned with dams, drainage, irrigation dams, stock dams and the like, in Stanley and Hughes [site of the Tyler dam] counties. In the last few years we've built about 10 or 12 dams, up to as high as 100 to 150 dams a year." Our review of the cases cited to us by both parties, as applied to the facts in the record before us, confirms the conclusion of the trial court that the Rylands rule as urged by the appellant, is not applicable hereto.

Plaintiff's theory of nuisance is no more helpful to it. Plaintiff complains that the court erred in instructing the jury that the "maintenance or rebuilding of a dam across a natural drainway is not a nuisance which renders the owner absolutely or strictly liable and that liability depends upon negligence." Corollary thereto were additional instructions set out in the margin hereof.12

The term "nuisance" is a sort of legal grab bag.13 It was Thayer14 who said, with ample support, that "'Nuisance' is a good word to beg a question with. It is so comprehensive a term, and its content is so heterogeneous, that it scarcely does more than state a legal conclusion that for one or another of widely varying reasons the thing stigmatized as a nuisance violates the rights of others." We see no need to attempt the exploration of the ramifications of the various "kinds" of nuisance.15 Suffice for our purposes that what is being urged by the railroad is that facet of nuisance described by Mr. Justice Cardozo, among others, as "absolute nuisance,"16 the situation where one acts at one's peril, such as "one who digs a hole in a highway."But the difficulty with the plaintiff railroad's attempt to impose under the "absolute nuisance" doctrine the liability denied under the Rylands doctrine of "absolute liability" is that both legal theories rest upon essentially the same doctrinal foundation. As we have seen, the absolute liability of Rylands rests upon an abnormal use in an inappropriate place. Similarly, it is clear that strict liability under the doctrine of absolute nuisance exists where an unnatural use of the land is made, involving an extreme hazard to the safety of the plaintiff in the use of his land. We are cited to no South Dakota cases as precedent but the principle is well illustrated by the Kansas case of Gilbert v. Davidson Const. Co., 110 Kan. 298, 203 P. 1113 (1922) wherein the defendant operated a rock crusher in the street close to plaintiff's home, resulting in injury to and destruction of plaintiff's household goods, clothing, and food. A jury verdict for damages was sustained on appeal, despite the lack of showing of negligence on defendant's part, defendant insisting that it was merely "an ordinary rock crusher, operated in the ordinary way, and with the appliances usually employed." In affirming, however, the court pointed out that from its location alone its operation constituted a nuisance and "The fact that the business itself is lawful, and the machine skillfully operated, did not give the defendant a right to put and use it in front of a residence where is [sic] necessarily would cause injury and loss."17 The principle here involved was well expressed, with numerous citations of authority, in Prosser on Torts, 4th Ed. (1971) Sec. 87:-"[A] nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous enterprise," where it "necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed."18 From what we have pointed out heretofore with respect to abnormal use under the Rylands doctrine it is clear that there was no more justification upon these facts for the court's application of the absolute nuisance theory and the court did not err in the instruction given or in its denial of the requested instructions.

We find no error, under the facts before us, of the court's instruction on Acts of God. The instruction given followed substantially that in Northwestern Bell Telephone Co. v. Henry Carlson Co., 165 N.W.2d 346 (1969) and correctly stated the South Dakota law applicable under the circumstances presented.

Under the view we have taken of the case, namely, that in consideration of the entire record, and the body of instructions taken as a whole, and in context, there was no error in the instructions given or refused, we find it unnecessary to discuss appellee's argument that, in any event, the jury's verdict might well have been grounded either upon the railroad's own negligence in the operation of the train, or its failure to prove that defendant's acts proximately caused plaintiff's injury in view of the unusual weather conditions existing on the night in question.

Affirmed.