Missouri Pac. R. Co. v. Berry

• Decision Date: 10 June 1935
• Docket Number: No. 4-3899.,4-3899.
• Citation: 83 S.W.2d 531
• Parties: MISSOURI PAC. R. CO. v. BERRY et al.
• Court: Arkansas Supreme Court

83 S.W.2d 531

MISSOURI PAC. R. CO. v. BERRY et al.

No. 4-3899.

Supreme Court of Arkansas.

June 10, 1935.

Appeal from Circuit Court, Izard County; J. L. Bledsoe, Judge.

Suit by S. C. Berry and another against the Missouri Pacific Railroad Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Thomas B. Pryor, of Fort Smith, and Harvey G. Combs, of Little Rock, for appellant.

John C. Ashley, of Melbourne, for appellees.

MEHAFFY, Justice.

This suit was begun in the Izard circuit court by the appellees against the appellant for damages to certain lands in Izard county, Ark. The statement in the complaint as to the lands is as follows: "That the plaintiffs are the owners of certain lands and real estate in Izard County, Arkansas, including the northwest fractional quarter of section 18, township 17 north of range 11 west."

It was alleged that the railroad was operated over and through the lands of appellees as described; that the lands were situated and located near Berry station; that the railroad company, in the construction of its road through appellees' lands, built a dump or roadbed several feet in height on either side of which was cut and dug a ditch to carry the water; that on the south side of the road about a quarter of a mile distant from the roadbed is White river; that the lands adjoining the road on the north side are higher than the lands on the south side; that the ditch on the north side of the road, into which was diverted a natural drain and branch, ran in an easterly direction to near milepost No. 347-10½, where a bridge or culvert was built, and the waters running under said railroad and across said right of way to the south side thereof, where the railroad company had cut another ditch parallel with its right of way, and running in an easterly direction to Moccasin creek, and adjoining the lands of appellees lying on the south side of the railroad bed; that the appellant negligently permitted their ditch to become clogged, stopped, and dammed up, which diverted the water over the lands of appellees; that appellees requested and urged the appellant to keep the ditch open; that the appellant wholly disregarded the request; that the water overflowed said ditch because of the negligence and carelessness of appellant in permitting said ditch to become filled up and overflow, and that this caused the water to overflow appellees' lands, scatter sand and gravel over about ten acres, damaging the crops and rendering said ten acres unfit for cultivation; that said land was worth $100 per acre; that appellees own a very valuable farm adjacent to White river, and by the negligence of the appellant above described, appellees' lands have been permanently damaged in the sum of $2,500, and the crops growing thereon damaged in the sum of $300; and that said ten acres of land, at the value of $100 an acre, was rendered wholly unfit for cultivation. Appellees asked for damages in the sum of $2,800.

The complaint was filed September 4, 1933, and on February 25, 1934, appellant filed motion to require appellees to make their complaint more definite and certain by describing the lands. This motion was overruled, and on March 6, 1934, an amendment to the complaint was filed. On September 26, 1934, the appellants filed answer, denying the material allegations in the complaint.

On September 27, 1933, the case was continued by agreement, and set for the second day of the next regular term, which would have been March 27, 1934. On March 24, 1934, appellants filed petition and bond for removal to the federal court. On March 27th the case was continued until the September term.

On May 28, 1934, an order remanding the cause was filed. The cause was tried on September 27, 1934, and a verdict and judgment rendered in favor of appellees in the sum of $1,000. Appellants filed motion for a new trial, which was overruled, and the case is here on appeal.

There was practically no conflict in the evidence, and it is not contended that the evidence is not sufficient to sustain the judgment.

Appellant contends that the court erred in overruling its motion to make the complaint more definite and certain. The complaint stated that appellees are the owners of certain lands and real estate in Izard county, Ark., including the northwest fractional quarter of the section 18 in township 17 north of range 11 west. There could certainly be no doubt about this land being included in the complaint. The complaint also states that the lands are situated and located near Berry Station on said railroad. The complaint also states that the water course passes under a bridge or culvert on the south side of the railroad right of way, paralleling the same with Moccasin creek, a distance of one-half mile, running in an easterly direction, and adjoining the lands of the appellees lying on the south side thereof.

If the appellees stated that they were the owners of lands which included the section mentioned, we think anybody would know that lands other than those described were included. Moreover, the jury was permitted to view the lands and the attorneys of both parties were present, and evidently pointed out all the lands.

In the examination of Mr. Berry, the first witness, the attorney for appellant objected to any proof of damages to any land other than that described in the complaint. His objection was sustained and the attorney for appellees was directed to limit his proof to the land mentioned in the complaint. Both parties introduced maps. The Baxter county line was pointed out on the maps, and the appellees were limited in their evidence and...