1Missouri & North Arkansas Railroad Company v. Bratton

• Decision Date: 13 December 1909
• Parties: 1MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. BRATTON
• Court: Arkansas Supreme Court

124 S.W. 231

92 Ark. 563

1MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. BRATTON

Supreme Court of Arkansas

December 13, 1909

Appeal from Van Buren Circuit Court; Brice B. Hudgins, Judge affirmed.

Judgment affirmed.

W. B Smith, J. Merrick Moore and H. M. Trieber, for appellant.

Speculative testimony of probable damage tends to divert the mind of the jury from the real damage. 23 Wend. 434. The elements entering into the estimate of damages for a right of way must not be of a remote or speculative character. 39 Ark. 167; 16 Barb. 196; Id. 100; 13 Barb. 169; 53 Barb. 457; 35 N.H. 134; 10 Cush. 385; 12 Cush. 605; 27 Pa.St. 99; 33 Id. 57; 34 Ia. 353; 128 N.Y. 465; 6 Wis. 636. It is not competent for a witness to draw a conclusion of fact from the evidence in the case. 185 Mo. 239; 191 Mo. 347; 57 Mich 512; 208 Ill. 608; 13 N.D. 432; 181 N.Y. 33. Prospective or speculative damages do not constitute an element to be paid the owner of land by a railroad condemning it for a right of way. 41 Ark. 431; 54 Ark. 540; 34 Ia. 458.

William Gilmore and Rose, Hemingway, Cantrell & Loughborough, for appellee.

Where a railroad is so constructed as to cause land to overflow, the owner may recover for the injury. 45 Ark. 253; 44 Ark. 360; 54 Ark. 140; 62 Ark. 360; 71 Ark. 189; 72 Ark. 127.

OPINION

BATTLE, J.

This was an action brought by the owner of property entered upon and appropriated by the appellant for a right of way, for damages for such appropriation.

The amended complaint, filed August 12, 1907, is as follows:

"The defendant is a corporation organized and doing business in the State of Arkansas. The plaintiff is the owner of the north half of the northwest fourth, section 13 in township 13 north, range 14 west, in Van Buren County, Arkansas. The defendant constructed a railroad over said land, and in so doing located it dangerously near to the buildings and well on the land; appropriated about five and three-fourths acres of the same to their own use as right-of-away; destroyed his private road leading to the land, and forced plaintiff to use a much poorer road and to climb a part of the mountain to reach said road, which climb was not required by his former road; constructed a fill from the railroad bed (in the wagon road) across a low swag where the water formerly passed around in high water season; and so constructed the grade of the railroad bed that the water can not find an outlet around his cultivated land when the Red River is at high stages, as it formerly did, but will throw a damaging current over part of his cultivated land, and will undoubtedly cause the destruction of between five and fifteen acres thereof. By blocking said outlet for high water, the whole force of the current of Red River, which crosses the land, will be directed against the bank of the portion of elevated land near the river where plaintiff's buildings are located, and is likely to undermine said buildings and destroy more of his land. In making the elevated grade for roadbed it caused deep curves to be made near the buildings, and so made the excavations that there is no outlet for the water, and said excavations retain stagnant water at all seasons, which water renders the habitation unsanitary and dangerous to health.

"In constructing said railroad the defendant located it so as to enter the southwest corner of his field, and follow the highest part of the land, and pass out about the middle of the north side of the field and so curve about that it leaves him two irregular, inconvenient shaped fields, requiring short turning in middle of the former field; and that the defendant located only one crossing over the railroad, which crossing is near the middle of the field and requires a roadway over and along more land to go and return from work, and is an unending annoyance and injury to the tiller of the land.

"Plaintiff states further that the land is almost all river bottom land, and is very productive, and is also very easily affected by water currents, and that he had about 40 acres in cultivation, and that he is damaged as follows: by land taken in right-of-way, $ 400; by injury to balance of land by cutting into irregular shapes and inconvenient fields, $ 600; by inconvenience in crossing, $ 200; by danger of fire to buildings and other property and annoyance of trains, $ 150; by damages from overflow and changing course of river at high water stages, $ 500; by damages from taking former roadway and change of road, $ 250; injury from stagnant water near buildings, $ 200; interest on the money since injury done, $ 175."

The action came on for trial in the Van Buren Circuit Court, and Ambrose Bratton, the plaintiff, testified in his own behalf that the defendant constructed its railway across his land and appropriated for its right-of-way more than five acres of land, which was worth one hundred dollars an acre; and built it through a field on the land, consisting of fifty acres, and so divided the field as to leave it in an inconvenient shape to cultivate, and thereby impaired its value in the sum of $ 650, and made it inconvenient and difficult to cross the railroad from one part of the field to the other, and thereby damaged him in the sum of $ 150, and constructed its railroad track within one hundred feet of his barn, and a little further from his residence, and brought them within range of sparks and cinders escaping from passing engines, and endangered stock on his premises, and by such proximity impaired the value of his farm in the sum of two hundred dollars. (For the purpose of explanation we say here that the land in question is on Little Red River, and that is the river referred to in the testimony of plaintiff.)

Plaintiff further testified, in part, in response to interrogations, as follows:

"Q. Now, state whether or not there is any damage or probable damage the water will have on the land there? A. Just like I stated the other day, the river has a square turn there that comes from the west, due east, and runs squarely against the bank. It is low, and next to the mountain, where the wagon road comes, it runs and makes a sharp turn, and the force of the water for two hundred yards comes square against that bank. At a high time it runs over there before the road was put there. I saw it three feet or more deep where the roadbed is now. There were two big white oaks there that had the ground set with roots that kept the ground from washing. As soon as the roots rot, it will cut that, and keep cutting it on the wagon road, and it will run over the foot of the wagon road where they have built that dump, and cut it out just like a snow ball. That will run it into the ditch next to the railroad where the borrow pits are. The water will go right through there. Q. Is there any part of your land that has been subject to back water? A. Five acres there that gets water at a high...