Arkansas Power & Light Co. v. Beauchamp

• Decision Date: 16 November 1931
• Docket Number: 220
• Citation: 43 S.W.2d 234,184 Ark. 698
• Parties: ARKANSAS POWER & LIGHT COMPANY v. BEAUCHAMP
• Court: Arkansas Supreme Court

43 S.W.2d 234

184 Ark. 698

ARKANSAS POWER & LIGHT COMPANY v. BEAUCHAMP

No. 220

Supreme Court of Arkansas

November 16, 1931

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge affirmed.

Judgment affirmed.

Robinson House & Moses, for appellant.

H B. Means and John L. McClellan, for appellee.

OPINION

BUTLER, J.

The appellant, Arkansas Power & Light Company, built a water power dam, called the Remmel Dam, across the Ouachita River in Hot Spring County, about midway between the towns of Hot Springs and Malvern, by which a reservoir known as Lake Catherine was created covering an area of approximately 3,000 acres. Later, the appellant began the construction of another dam about twelve miles above the Remmel Dam, and at the upper head of Lake Catherine, the construction of which was nearing completion in the fall of 1930. The appellees owned and operated some small farms lying adjacent to the Ouachita River, about ten to fourteen miles below the Remmel Dam. On October 7, 1930, a part of these farms were overflowed, and the matured crops of corn then standing thereon were destroyed.

The appellees brought suit against the appellant company to recover damages for the destruction of the crops on the ground that the same was occasioned by the negligent operation of the flood gates of the Remmel Dam, by which a volume of water was suddenly released from the reservoir above into the stream below in such quantity as to cause the overflow and damage. The appellant company denied the allegations of negligence, and contended that the damage to appellees' crops was not the result of any negligent act on the part of its servants, but was occasioned by an unusually large quantity of rain which suddenly fell during October 5th, 6th and 7th, in the watershed of the Ouachita River above the lands of the appellees, and that the overflow was the result of the high flood stage of the river due to natural causes, and not in any manner to the operation of the dam.

At the trial of the issues a verdict was rendered in favor of the appellees. In presenting the case here on appeal it is conceded that the court's declarations of law were correct except as to instruction No. 4 1/2 given at the request of the appellees, and the giving of that instruction is assigned as error.

The principal question raised and argued by the appellant, however, is the sufficiency of the evidence, the contention being that there was no competent evidence of a substantial nature to support the verdict.

The Remmel Dam was so constructed as to impound the waters of the Ouachita River and raise them to a certain height and then permit the ordinary flow of the river to pass on over the dam to the river below. The dam was constructed with 12 openings, each 27 1/2 feet wide and 18 feet deep, called flood gates, which were closed by means of a door let down from above. These floodgates were for the purpose of letting the excess water through in times of flood and were supposed to be large enough to permit the maximum floods of the river to pass through. The doors or gates were so arranged that they might be raised to any desired height at the will of the person in charge of the dam. The testimony of the witnesses for the appellant tended to prove that the floodgates were properly operated at the time of the flood, and that no more water was allowed to pass than the existing natural flowage, and that the quantity of water passing and the resultant overflow of appellees' lands were occasioned solely by unusual and excessive rains. Indeed, there is evidence that the construction and operation of the dams as shown by the records on the occasion of the overflow, instead of causing the overflow, had the effect of lessening its extent as the dams impounded the water and controlled its flow so as to lessen the volume of water which would otherwise have covered the lands of the appellees. It would serve no useful purpose to detail this evidence, for, as we have seen, it is sufficient to have warranted a verdict for the appellant, if it had been accepted as true by the jury.

Since this testimony was not accepted by the jury, it becomes important to review such circumstances as appear in the evidence tending to contradict that testimony and to refute the contention made by the appellant. It is well settled that the verdict must not rest on mere conjecture or speculation, but on some substantial testimony tending to...