Little Rock & Ft. Smith Ry. Co. v. Wallis

• Decision Date: 08 April 1907
• Citation: 102 S.W. 390
• Parties: LITTLE ROCK & FT. SMITH RY. CO. et al. v. WALLIS.
• Court: Arkansas Supreme Court

102 S.W. 390

LITTLE ROCK & FT. SMITH RY. CO. et al. v. WALLIS.

Supreme Court of Arkansas.

April 8, 1907.

Appeal from Circuit Court, Faulkner County; George M. Chapline, Judge.

Action by J. A. Wallis against the Little Rock & Ft. Smith Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Oscar L. Miles, for appellants. San Frauenthal, for appellee.

BATTLE, J.

The plaintiff, J. A. Wallis, complains of the defendants, the Little Rock & Ft. Smith Railway Company and the St. Louis, Iron Mountain & Southern Railway Company, and for cause of action against them says:

"That the defendant the Little Rock & Ft. Smith Railway is a railroad corporation, duly organized under the laws of the state of Arkansas, and it does now and has heretofore, on the dates hereinafter mentioned, owned and operated in the manner hereinafter set forth a railroad through Faulkner county, Ark., and did at the time hereinafter set forth construct and repair the construction of its roadbed along its right of way through said county; that the defendant the St. Louis, Iron Mountain & Southern Railway Company is a railroad corporation, duly organized under the laws of the state of Arkansas, and, as such, under direction of the said Little Rock & Ft. Smith Railway, and as lessee thereof, is now and did on the dates hereinafter named operate the said line of railroad through Faulkner county, Ark., and did on the dates hereinafter named construct and repair the construction of the roadbed along the right of way through said county of said above railroad, under the direction of and as lessee aforesaid.

"Plaintiff says that he is the owner of the following land in Faulkner county, Ark., to wit: The S. E. ¼ of section 12, in Township 3 N., range 14 W. He says that the right of way of said defendants and the roadbed of said defendants crosses said land, and has been constructed across said land for several years prior to July, 1902. He says that in July, 1902 the said defendant did repair and construct the said roadbed along the said right of way across said entire tract of land, and did complete the same on said land during the latter part of August or 1st of September, 1902. He says that the roadbed crosses said lands at the eastern portion thereof in a direction from the southwest to the northeast, and that the natural course of the water in draining said land flows from the western portion thereof across said right of way of defendants. He says that the said defendant in July, 1902, and up to September 1, 1902, did repair and reconstruct its roadbed along the above-described land, and did wrongfully and negligently construct and maintain said roadbed along the above-described land, and did wrongfully and negligently construct and maintain said roadbed so that the embankment of the same was built to a high elevation, and the ditches and outlets across the same, through which the water did heretofore according to the natural course of the water flow, were wrongfully and negligently filed up by said defendants and have been wrongfully and negligently maintained in that manner ever since; that thereby the defendants have caused the water running along the creeks of said land and the surface thereof to overflow said land and to rise higher and remain longer upon said land than it did before, greatly in the damage of the plaintiff.

"Plaintiff says that by reason of this roadbed having been constructed and the outlets and ditches filled up by the defendants as aforesaid, defendants did cause about 48 acres of land upon the above tract to be overflowed by the waters of the creek and falling on the surface thereof, and that said overflow of said land was caused wrongfully and negligently by said defendant as aforesaid in July, 1902, and that said waters did remain thereafter on said land through said above cause for a long period of time; that at that time said land had been planted in cotton and in corn and the same were then growing; that said cotton and corn were damaged and destroyed by said water so negligently backed up and overflowing said land, and so caused by the defendants. The said damage to said crop amounted to the value of $1,500.

"Plaintiff says that the said roadbed across said land was thus negligently constructed and negligently maintained in the same manner during the year 1904; that by reason thereof said land was overflowed wrongfully and negligently by the defendant during the months of June and July, 1904; that said land had been during said year 1904 planted in cotton and corn, and that the same were damaged and destroyed by the backing up and overflow of the waters on said land and crops, caused by the defendant as aforesaid; and that said damage to said crop of cotton and corn by reason of such overflow of said waters amounted to the sum of $1,500.

"Plaintiff says that said roadbed across said land was thus negligently constructed, and was negligently maintained during the year 1905; and that, by reason thereof, said land was overflowed by said waters in the above manner and wrongfully and negligently by the defendant during May and June, 1905, that said land had been during said months and year planted in cotton and corn, and that said crops were damaged and destroyed by said waters and overflow, and that the damage to said crops during the year 1905 amounted to the sum of $1,500.

"Plaintiff says that no part of said damages has been paid to him, although the defendants were notified thereof.

"Wherefore plaintiff prays for judgment against said defendants for the sum of $4,500 damages; and he prays for judgment for costs and all proper relief."

"[Signed] Sam Frauenthal, Attorney for Plaintiff."

The defendants answered and denied these allegations.

T. L. Daniels, a witness for the plaintiff, testified "that the plaintiff owned the land near Palarm station on the Little Rock & Ft. Smith Railway, upon and across which the line of the said railway was constructed; that during the year 1902 said line of railway was rebuilt and reconstructed; that before such reconstruction there were two trestles or waterways through the company's embankment on that land built to permit the water from the south or west side of said track, which was...