"The plaintiff, R. L. Greer, is the owner of a certain lot or tract of land fronting and abutting upon Railroad avenue, one of the principal streets in the city of Morrillton. The property is about 70 feet front and about 365 feet back. The plaintiff acquired title to the same by deed of conveyance from M. D. Shelby, on the 22d day of April, 1896. That he entered into possession of the same, and improved it by remodeling a certain house then standing upon it, and fixed his residence and began to reside upon and does now reside upon the same. That prior to the time the plaintiff acquired his property in the premises, and prior to the time when the defendant constructed its line of road along and near to said premises, there was a public highway established and maintained along the north side of what was appropriated by defendant. That the city of Morrillton, after the construction of said railroad, was laid out and built up along both sides of said railroad for a distance of about one mile. Within this distance of one mile is situated the premises of the plaintiff, but said premises were not regularly laid out and platted as any portion of said town of Morrillton. That the said public highway afterward became known and recognized as the said `Railroad Avenue' above referred to. That the said Railroad avenue has been, since time prior to the construction of said railroad, continuously used as a public highway and as Railroad avenue. The plaintiff's property is more particularly described in memorandum attached hereto, marked `Exhibit A.' That the defendant's road was constructed along said highway in the year 1871.
"It is agreed: That a thorough search of the proper records of Conway county fails to disclose that the defendant railroad ever acquired any right of way along said road or avenue, either by a grant or condemnation proceeding; and fails also to show that any profile or map of said route was ever filed with the clerk of the county court of said county as contemplated by section 2765 of Sandels & Hill's Digest. That the said defendant company originally constructed its road along the south side of the old public highway now know as `Railroad Avenue,' practically on the surface level, just opposite the plaintiff's
property there being a slight cut, and continued to maintain and operate its said road along said line, claiming a right of way of 49½ feet on each side from the center of the same, which is more clearly shown in a plat hereto attached, marked `Exhibit B.' That along in front of plaintiff's premises the ground was practically level out to where the defendant's cut began, which was 6½ feet from the end of the ties. That in the early spring of 1902 the defendant railroad company elevated its grade line at the point in controversy to a height of 11 feet. That in the elevation of the grade line it constructed an embankment or dump upon which to operate its road; that the said dump, at its top, is about 24 feet wide — that is to say, 12 feet wide on either side of the center line of the track; that the base of said dump on the north side and next to the plaintiff's premises is 26 feet wide, measured from a perpendicular line dropped from the center of the track. That there is yet between the base of said dump and the sidewalk in front of plaintiff's premises a space of 18 feet, along which space the public highway, Railroad avenue, now runs. Immediately next to plaintiff's premises there is now a sidewalk of six feet wide. The plaintiff's house is set back from the north of said sidewalk a distance of 28½ feet to the front porch. It is 14 inches high from the ground, which is practically on a level with the said street. That the residence portion of the city of Morrillton is practically divided by the railroad at the point in controversy. That before the construction of the embankment above mentioned the railroad could be crossed by pedestrians at any point opposite the plaintiff's dwelling. That it can now be crossed only by climbing over the said embankment, which rises at an angle of 45 degrees, or else by going 240 yards along said highway to the west, at which point the railroad company has constructed an underground crossing for persons, animals and teams; this is in an opposite direction from the business portion of the town, and just outside the corporate line, a distance of 20 or 30 feet. That persons crossing at the underground crossing mentioned are compelled to cross the property of an oilmill, located on the south side of the railroad, near said underground crossing, and go a distance of 750 feet to Church street, in order to turn back east one block toward the business portion of town and turn north in order to reach the dwellings on the south side of the railroad opposite plaintiff's property. That before the construction of the present embankment there had been maintained for a long number of years a public crossing over defendant's railroad at a point 180 feet east of plaintiff's property. That said crossing has been closed by the construction of said embankment, and has not since been opened. That since the construction of said embankment it is impracticable to cross the same with vehicles of any kind. The nearest open crossing at this time at which the railroad may be crossed east of Greer's property, and toward the business part of the city, is 400 yards.
"It is agreed: That the directors of the Little Rock & Ft. Smith Railway, having decided that it was impracticable to operate its line of road and promptly move the traffic offered to it for shipment on its present degree of curvature and on its established maximum grade line, in April, 1902, passed at their annual meeting in the city of Little Rock, Ark., a resolution authorizing the reestablishment of its line of road on the same and different alignment and on a maximum of six-tenths of 1 per cent. grade line; that in pursuance to this resolution the large embankment in front of plaintiff's premises was constructed; that in the exercise of the highest degree of care and skill in engineering this large embankment was necessary to the perfect construction of defendant's line of road on the newly established maximum grade line; that said embankment was constructed after the most approved modern method, in the most skillful manner possible; that for a number of years the defendant has been unable to move promptly the vast amount of freight offered to it for shipment for interstate points and locally; that, when defendant's line of road has been constructed according to the present plans adopted by its engineering department, each engine and crew of train hands will be able to move approximately 60 per cent. more freight than such engine and crew has been able to move over the old line, operated with the most consummate skill. In the construction of the embankment in front of plaintiff's premises, defendant did not interfere with or injure physically the premises of the plaintiff; that the public highway still exists along the base of said embankment and in front of plaintiff's...
