Keith v. Drainage District No. 7 of Poinsett County

• Decision Date: 02 March 1931
• Docket Number: 189
• Citation: 36 S.W.2d 59,183 Ark. 384
• Parties: KEITH v. DRAINAGE DISTRICT NO. 7 OF POINSETT COUNTY
• Court: Arkansas Supreme Court

36 S.W.2d 59

183 Ark. 384

KEITH v. DRAINAGE DISTRICT NO. 7 OF POINSETT COUNTY

No. 189

Supreme Court of Arkansas

March 2, 1931

Appeal from Poinsett Circuit Court; W. W. Bandy, Judge; reversed.

Judgment reversed.

C. T Carpenter, for appellant.

Chas D. Frierson, for appellee.

BUTLER J. SMITH, J., dissents.

OPINION

BUTLER, J.

This suit was filed by the appellant in the circuit court of Poinsett County on the 3rd day of April, 1922. A demurrer was interposed to the complaint and sustained, from which an appeal was taken to this court, where it was decided that the allegations of the complaint stated a cause of action. The cause was remanded with directions to overrule the demurrer and for further proceedings according to law. Keith v. Drainage Dist. No. 7, etc., 181 Ark. 30, 24 S.W.2d 875. Thereafter the case proceeded to trial upon the complaint, the original answer and an amendment thereto called the "separate plea of defendant," the reply to the same, and the testimony of witnesses. At the conclusion of the testimony, the court instructed the jury as to the law of the case in a number of instructions given at the instance of the plaintiff and of the defendant, and submitted the following interrogatories:

"Int. No. 1. Q. Do you find from a preponderance of the evidence in the case that the defendant diverted the waters of Right Hand Chute and the waters of the St. Francis River from their natural course, and that, as a direct result of such diversion, the lands in controversy here were damaged?

"Int. No. 2. Q. Do you find from the proof in the case that the lands in controversy here were damaged to any extent by ditches or other improvements in Mississippi County or Craighead County or in the State of Missouri?

"Int. No. 3. Q. If you answer interrogatory number one 'Yes,' then you are told to fix the damage to the land directly resulting from the diversion of said waters, as shown by the proof.

"Int. No. 4. Q. If you answer interrogatory number two 'Yes,' then fix, from the proof in the case, such damages as you find these lands sustained, by reason of said agencies, from the proof."

To interrogatories No. 1 and No. 2 the jury returned an affirmative answer fixing the amount of damage under interrogatory No. 3 at $ 8,000 and under interrogatory No. 4 at $ 4,800. After the jury brought in their answers to the aforesaid interrogatories, the trial judge, at the request of the defendant, made the following finding: "As a finding of law and fact, the court declares that the plaintiff cannot recover because of lack of title upon which to base a recovery," and thereupon rendered judgment "that plaintiff have and recover nothing notwithstanding the verdict of the jury." From that judgment the case is here on appeal.

1. A description of the territory included within Drainage District No. 7, and the nature and course of the structures erected by it, are fully set out in the complaint in the case of Keith v. Drainage Dist. No. 7, 181 Ark. 30, 24 S.W.2d 875, supra, and in the cases of Sharp v. Drainage Dist. No. 7, 164 Ark. 306, 261 S.W. 923, and Hogge v. Drainage Dist No. 7, 181 Ark. 564, 26 S.W.2d 887.

It was alleged that the levees of the district were so constructed as to inclose a large quantity of land, a part of which was the land of the appellant, and so as to dam the main channel of the St. Francis River and the Right Hand Chute of Little River, both of which were natural water courses, thereby diverting the waters from their natural flow and impounding them on the lands of the appellant; that these lands, prior to the construction of the levees, were fertile and suitable for cultivation, and that the construction of the improvement had rendered them valueless. This allegation was denied, and much testimony was introduced, both on the part of the appellant and the appellee, as to this issue. It would unduly extend this opinion to set out this testimony in detail. It suffices to say that the testimony introduced on the part of the appellant tended to establish the truth of the allegation of his complaint and was ample to support the finding of the jury, and this is virtually conceded by the appellee.

In the briefs of counsel some space is devoted to the discussion of the question as to whether or not appellant's cause of action was barred by the statute of limitation. It is unnecessary for us to consider this question because it was not an issue in the court below. The appellee did not raise this question by demurrer, or in its answer, and it is settled law that, in order to obtain the benefit of a defense of the statute of limitation, it must be pleaded either by demurrer or answer. Shirey v. Clark, 72 Ark. 539, 81 S.W. 1057; Kelly v. K. C. So. Ry. Co., 92 Ark. 465, 123 S.W. 664; Earl v. Malone, 80 Ark. 218, 96 S.W. 1062.

Appellee takes the position that, if the trial court erred in the judgment rendered, the case should be reversed and remanded for a new trial because of certain errors in the conduct of such trial:

First, because of the refusal of the court to permit the introduction in evidence of an alleged report made by the engineer of appellee district which was offered in evidence as exhibit B to the testimony of Mr. Fairley, the engineer of the district, who testified in the case. The report offered in evidence had never been filed with the proper officials and was a lengthy document purporting to give a description of the territory and the opinion of the engineer making it as to the adaptability of the land within the levees for cultivation, together with other matters not relevant to the issues. As the engineer who testified was permitted to use the report as a memorandum and testified as to all of the material matters set out therein, there was no prejudice and no error.

Second, it is insisted that the court erred in refusing to permit a witness to testify that, if the St. Francis River had been leveed with the levees running near and parallel to its banks, the same damage would have resulted to the lands of the appellant as from the present structures. This, of course, was mere speculation, and we cannot see how the action of the court in this particular was erroneous. This witness also was asked regarding the governmental requirement of the flow to be maintained in the St. Francis River. We do not see how this was material, because, no matter what the requirement might have been, the result as found by the jury would have been that the structures damaged the land of the appellant.

Third, that, because plaintiffs were permitted to introduce a certain map showing the territory embraced within the levees and the course they ran around the territory and across the waters of the Right Hand Chute and St. Francis River. It appears that this map was prepared by the engineers of the district, filed with the board of directors on the 4th of October, 1920, by its secretary and in the office of the county clerk on November 1, 1920. This map appears to have been properly identified and in the proper depository, and was competent, although it might have been superseded by a later map. The map which it was claimed superseded the one introduced was not available to the plaintiff, and was not introduced by the defendant.

Fourth. It is insisted that the court erred in refusing to declare the law as requested by the defendant district in instructions 2 and 5. Instruction No. 2 tells the jury that the damage must be fixed as of the date when the levees and dams were completed, and instruction No. 5 reiterates that with a declaration that such structures were completed in the spring of 1926. The court was correct in refusing these instructions as we shall presently show.

Fifth, that the court erred in refusing to give instruction No. 4, requested by the defendant. It told the jury that the defendant would not be liable for diverting the surplus or flood waters by levees, dams or otherwise, so long as said waterways were permitted to carry the water to the extent of their full capacity. The court properly refused this instruction, as it is in conflict with our holding in the Sharp, Keith and Hogge cases cited, supra.

Sixth. Instruction No. 3, given at the request of plaintiff, is objected to by appellee. That instruction, in brief, directed the jury to find for the plaintiff if the defendant by its structures, diverted the waters of Little River into a reservoir, and if, by the construction of the levees of the reservoir and the dam across St. Francis River, the waters thereof were collected and impounded and diverted from their natural course, flooding the land of plaintiff. The criticism is because of the use of the word "reservoir," which, it claims, was not a term established by the uncontradicted evidence. That is true. The engineer, Mr. Fairley, and the attorney for the appellant indulged in some argument as to the proper description of the territory within the structures of appellee district, the attorney preferring the use of the word "reservoir" and the engineer preferring the use of the term "storage basin" After quite a bit of argument they were unable to state the difference between a reservoir and a storage basin. Neither do we see any difference. It appears to us that the two are synonymous, but, if the appellee preferred "storage basin," it should have requested that the word "reservoir" be stricken out and "storage basin" substituted therefor. Other objections were made to the instruction, but we cannot see their merit, and certainly the instruction was not inherently wrong; and, if its phraseology was confused or ambiguous, the appellee should have made specific objection to it.

2. The real question in this case is that raised by the amendment to the answer of the defendant f...