Fayetteville & Little Rock Ry. Co. v. Combs

• Citation: 11 S.W. 418
• Parties: FAYETTEVILLE & LITTLE ROCK RY. CO. <I>v.</I> COMBS.
• Decision Date: 13 April 1889
• Court: Supreme Court of Arkansas

11 S.W. 418

FAYETTEVILLE & LITTLE ROCK RY. CO.v.

COMBS.

Supreme Court of Arkansas.

April 13, 1889.

Appeal from circuit court, Washington county; J. M. PITTMAN, Judge.

B. R. Davidson and E. D. Kenna, for appellant. J. D. Walker, for appellee.

COCKRILL, C. J.

1. This is an appeal from a judgment awarding damages assessed by a jury as compensation to a land-owner in a statutory proceeding instituted by the railway for condemnation of a right of way. The road had been constructed diagonally across the cultivated lands of Combs' farm. The questions raised by the company's appeal relate mainly to the measure of damages. The court's charge definitely confined the jury to the consideration of the difference in value of the tract through which the right of way was condemned before and after the construction of the road, in accordance with the ruling in Railroad Co. v. Anderson, 39 Ark. 167. As elements which might be considered as disadvantages impairing the value of the remaining property, the charge recites, "the frightening of teams, but not of loose stock," and the danger of injuries to stock, or in lieu thereof the cost of fencing made necessary by the construction of the road. This part of the charge was limited by a direction to the jury to consider nothing as an element of damage, except as it was peculiar to the defendant's land. On cross-examination, witnesses who had given opinions as to the amount of the depreciation of the value of the farm stated that the frightening of teams in farm use, and the danger to stock on the farm, entered into their calculation; and that part of the charge, to which attention is directed, is based upon that testimony. In the case of Railway Co. v. Allen, 41 Ark. 431, it was held that the exposure of a dwelling to fire by close proximity to a railroad; the annoyance from the sounding of whistles and bells, and the running of trains, as well as the increased danger to members of the family and life-stock, — were elements of damages to be considered in a condemnation proceeding, because they tended to diminish the vendible value of property. In so far as the railway enhances the danger to live-stock upon a farm, to that extent may it be said to conduce to depreciate the value of the land for farming purposes; and for that reason it has a direct bearing upon the fact to be established by the condemnation proceedings, — that is, the injury to the land, or, what is the same thing, its depreciation in value by the construction of the road. The frightening of teams employed in the use of the land has the same tendency, and, although its influence upon the value cannot be considered great, it is not too remote to be taken into account in ascertaining the extent of the injury. Railway Co. v. Hill, 56 Pa. St. 460; Snyder v. Railway Co., 25 Wis. 60; Weyer v. Railway Co., 68 Wis. 180, 31 N. W. Rep. 710; 2 Wood, Ry. Law, § 257, p. 919. The inconvenience in such cases is not such as is common to the community in general, but is in the nature of an interruption of the business to which the land is appropriated.

2. On cross-examination, one of the witnesses based his estimate of damages to the land in part upon the fact that pools of water had been allowed to accumulate on the right of way in excavations made in constructing the road-bed, which he thought would produce sickness. The ditching for the road-bed had not been completed when the damages were assessed, and the company urges that the court erred in refusing to instruct the jury that they should indulge the presumption that the road-bed would be properly drained when completed. But the appellant was not injured by the refusal, for the court charged the jury that they should consider no element of damages to the...