Chicago, R. I. & P. Ry. Co. v. McCutchen

• Decision Date: 08 October 1906
• Citation: 96 S.W. 1054
• Parties: CHICAGO, R. I. & P. RY. CO. v. McCUTCHEN.
• Court: Arkansas Supreme Court

Page 1054

96 S.W. 1054

CHICAGO, R. I. & P. RY. CO. v. McCUTCHEN.

Supreme Court of Arkansas.

October 8, 1906.

Appeal from Circuit Court, St. Francis County; H. N. Hutton, Judge.

Action by James McCutchen against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Pierce and T. S. Buzbee, for appellant. J. M. Prewett, for appellee.

McCULLOCH, J.

The plaintiff, James McCutchen, is the owner of a tract of land in St. Francis county across which runs the line of railroad now operated by the defendant, Chicago, Rock Island & Pacific Railway Company, as lessee of the Choctaw, Oklahoma & Gulf Railroad Company, and he sues to recover damages alleged to have been sustained by reason of flooding of the land with water which prevented, during the year 1904, the cultivation of a crop. He alleges in his complaint that the railroad company, in raising its roadbed during the year 1901, constructed an embankment which obstructed a ditch draining the surface water from plaintiff's land and that, "because of the failure of the defendant to keep open the said ditch, the water at that point collects and stands on plaintiff's land, and so did collect and stand on it during the crop season of 1904 as to overflow six acres of it and prevent plaintiff from cultivating it, or from using it for any purpose." It appears from the evidence that the railroad company, in raising its roadbed for a sidetrack, obstructed the ditch so that it would not convey the water from plaintiff's land, and allowed the water to accumulate on the land and prevent the making of a crop. The railroad was not constructed across the ditch, but a sidetrack was raised so close to it that the dirt slides off the embankment into the ditch. The railroad company caused the ditch to be opened up several times, but allowed it to fill up again with dirt from the embankment. The plaintiff planted corn on the land in the spring of 1904, and, when the corn was about waist high, it was flooded with water and ruined by reason of the obstruction of the ditch. This action was commenced March 8, 1905, and the defendant introduced in evidence, and pleaded in bar of this action, the record in an action commenced on February 28, 1904, by the plaintiff against the Choctaw, Oklahoma & Gulf Railroad Company to recover damages for flooding of the same tract of land by reason of obstructing the ditch in question. The complaint in the former action contains substantially the same allegations as the complaint in the present case, and the record shows that there was a judgment by consent of parties rendered on September 9, 1904, in favor of this plaintiff for the sum of $50 damages. The defendant also pleaded the statute of limitation against plaintiff's right of recovery. The jury returned a verdict in favor of the plaintiff for $36, damages. Judgment was rendered accordingly, and the defendant appealed.

It is contended by appellant that the building of the embankment, and consequent obstruction of the ditch, was a permanent injury to plaintiff's land, as defined by this court in Railway Co. v. Anderson, 62 Ark. 360, 35 S. W. 791; that the judgment in the former action is a bar to further recovery; and that the obstruction to the ditch having been caused more than three years before the commencement of this action, the same is barred by limitation. In the Anderson Case just cited, the railroad was constructed across a natural ditch or drainway, and the railway company subsequently caused a trestle to be closed up and the drainage stopped, and the court held that the obstruction constituted a permanent injury and that the statute of limitations began to run against an action for damages from the time the trestle was closed. In St. L., I. M. & So. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174, the court said: "Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and it may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * But, when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may...