BIG LAKE VILLAGE, Mo. — It required a five-year legal struggle in federal and state courts before a Holt County jury could award a determined local farm couple $3.8 million earlier this month for damages they sustained during the 2011 flood.

“We spent 88 days boating in and out to the house, which was on high ground,” said Tom Tubbs, a Holt County farmer. “But it was two years and a lot of work before we could plant most of that ground.”

The jury verdict was rendered in a lawsuit brought in 2012 by Tom Tubbs and his wife, Dana Tubbs, against BNSF Railway Company Inc. The suit alleged a five-mile railroad track embankment that runs east and west between Fortescue, Missouri, and Rulo, Nebraska, had insufficient drainage to accommodate floodwaters. Federal law requires drainage under this kind of embankment. The embankment runs through the Tubbs’ 550-acre farm, which lies south and east of Big Lake, Missouri.

The jury award included $2,598,000 in actual damages and $1,231,000 in punitive damages.

The plaintiffs alleged the lack of drainage caused the embankment to act like a dam across the floodway, backing up floodwaters onto neighboring property to the north, including some of his farm. Without drainage, the accumulating waters jeopardized the stability of the embankment, which broke.

During the 2011 flood, attorneys said the lack of drainage caused the embankment to develop a massive 900-foot breach at the location of the Tubbs’ farm, resulting in a torrent of floodwater being channeled through the breach.

The Tubbs’ farm sustained numerous scour holes 30 to 60 feet deep and sand deposits as deep as 8 feet.

“We still have some new farm ponds and sand on some acreage,” Tubbs said. “Some of what was once prime river bottom farm land won’t ever be planted again.”

The case has a lengthy history. It required many months so the underlying legal issue involving the right of the plaintiffs to sue a railroad for damages could be argued in Washington, D.C., before the Surface Transportation Board.

Following the decision of the board, the case went to the United States Court of Appeals for the Eighth Circuit in St. Louis.

Both the Surface Transportation Board and the Eighth Circuit affirmed the right of the couple to pursue their claims against the railroad arising from alleged violations of federal law requiring drainage under the embankment.

St. Joseph attorneys Ed Murphy, Mike Taylor and Nancy Potter of the law firm of Murphy, Taylor, Siemens & Elliott represented Mr. and Mrs. Tubbs.

Marshall White can be reached at marshall.white@newspressnow.com. Follow him on Twitter: @SJNPWhite.