Railway Co. v. Lyman

• Decision Date: 08 April 1893
• Parties: RAILWAY COMPANY v. LYMAN
• Court: Arkansas Supreme Court

22 S.W. 170

57 Ark. 512

RAILWAY COMPANY v. LYMAN

Supreme Court of Arkansas

April 8, 1893

Appeal from Nevada Circuit Court, RUFUS D. HEARN, Judge.

Fox Lyman brought suit against the St. Louis, Iron Mountain & Southern Railway Company.

The complaint alleged that during the year 1888 the plaintiff was the tenant in possession of two plantations lying upon the banks of Red River, in Miller county, Ark., known as the Ogburn and the Glass-Chappell River plantations. On May 9 1888, plaintiff had in cultivation 160 acres in cotton and 40 acres in corn on the Ogburn place, and 165 acres in cotton and 40 acres in corn on the Glass-Chappell River place; that on said day both plantations were overflowed by back water and the crops destroyed; that the defendant railway company had, in 1873, erected its embankments through Red River bottom in a negligent and unskillful manner, not leaving sufficient openings, and that, by reason of said negligent and faulty construction, and the manner in which its embankment was maintained without sufficient openings, the water had been caused to back up and stay longer upon his land than it otherwise would, and thus destroy his crops that, by reason of such negligence, plaintiff had been damaged in the sum of $ 10,000.

The answer, admitting that the railway embankment had been constructed in 1873, contained a full, complete and definite denial of each and every allegation as set out in the complaint.

The court permitted Mrs. Cloud, a witness for plaintiff, to testify as follows: After stating that she had a conversation with one Conley, road-master for defendant in 1884, with reference to the railway embankment and the effects upon the lands above it, the following testimony was elicited:

"Q. State what you told Mr. Conley. A. I told him that the railroad was holding the water up on my farms, and that it needed more openings there. Q. What farms did you allude to? A. Willow Bend, White Bend and Ogburn places. Q. What did Conley say? A. He told me to get some man to write me a petition and send it around and have the citizens sign it and send it to him and he would send it to headquarters for me." To the giving of this testimony defendant excepted.

In the examination of plaintiff upon the measure of damages, the court permitted, over the defendant's objection, the following testimony to be introduced:

"Q. In a season like 1888, what would have been the yield of that land in cotton? A. We usually gather a bale of cotton per acre. Q. Did you work that place in 1887? A. Yes, sir. Q. How much of that land did you have in cotton? A. One hundred and seventy acres. Q. How many bales of cotton did you make? A. One hundred and sixty-seven bales. Q. What was the ordinary average yield of that Glass River place, if you know? A. It would make between three-fourths and a bale to the acre. Q. How much corn would the ordinary average yield on the Ogburn place make? A. About thirty-five bushels. Q. How about the Glass River place? A. Something near the same. Q. What was the cotton worth in 1888? A. I sold cotton from eight to eight and three-quarter cents. Q. What was the value of the 160 acres of cotton, taking into consideration the productiveness of the land, the stage and condition the cotton was in at the time of its destruction--the reasonable market value of that cotton at that time? A. I could place no estimation on the crop at that time. Q. Upon what basis do you say the reasonable value of the crop was at that time? A. About $ 4000 for the 160 acres of cotton on the Ogburn place. Q. What was the value of the corn crop in 1888, at the time of its destruction by the overflow? A. The net proceeds of it would be about $ 500. Q. The market value of the crop at that time? A. Yes, sir. Q. What was the reasonable value of the 120 acres of cotton on the Glass River place at the time of its destruction by the overflow? A. About $ 3000. Q. What was the reasonable market value of that thirty-five acres of corn? A. About $ 250 to $ 500."

The court, over defendant's objection, gave to the jury, on behalf of plaintiff, the following instruction:

"2. If the jury find for the plaintiff, the measure of damages will be the actual cash value of the crops destroyed at the time of the destruction, if the jury find any such to have been proven at the time of the destruction, with interest thereon at the rate of 6 per cent. per annum from the date of such destruction."

The court refused to give the following instructions asked by defendant, to which proper exceptions were saved:

"12. The jury are instructed that the testimony of capable and competent engineers, possessing skill and personal knowledge of the surrounding country, obtained by actual survey, is competent evidence in this case; and the jury alone can weigh such evidence, and they must consider it in connection with all the other evidence in the case.

"13. The right of the owner of land as well as the railway company to occupy and improve it in such manner and for such purposes as he or it may see fit for the better enjoyment of said land, either by changing the surface or by erecting embankments, buildings, or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement and occupation in any portion of it will cause waters, which may be accumulated thereon by rains and snow falling on its surface, or flowing on it from the surface of adjoining lands, either to stand in unusual quantities on adjacent lands, or to pass onto or over the same in greater quantities or in other directions than they were accustomed to flow; nor is it at all material in the application of this principle of law whether a party obstructs or changes the direction or flow of surface water by preventing it from coming within the limits of his land or by erecting barriers or by changing the level of the soil so as to turn it off in a new course, after its coming within the limits of his land. The obstruction of surface waters, or an alteration in their flow, affords no cause of action in behalf of a person who may suffer loss and detriment therefrom against one who does not act inconsistent with the exercise of due dominion over his own soil.

"14. The jury are further instructed that it is the right of the land owner, as well as the railway company, to deal with all surface water, and all water mixed with the soil, in any manner they deem necessary for the improvement or better enjoyment of their own property, so as not wantonly or maliciously to injure the lands of their neighbors; and if in so doing, in good faith, with no purpose of abridging injuring or interfering with any of their neighbors' rights or property, they injure their neighbors, then they are not in any manner liable. If, therefore, you find that, in order to enable the defendant railway company to build, construct, use and operate its railway, it was necessary to build this embankment through the Red River bottom; that, in so doing, it built the same in good faith above the high water mark, in a skilful and workmanlike manner; that they put in and maintained openings, culverts, trestles and bridges, which at the time were ample for the passage of the usual flow of water, and if the jury further find that there was no proof that the work was done unskillfully, carelessly, maliciously or wantonly, then your verdict must be for the defendant."

"17. It is the imperative duty of the jury to try this case and decide it precisely the same as they would if it was a suit between two individuals; and the fact that the plaintiff is an individual and the defendant a corporation must make no difference with the jury. In considering and deciding the case, the jury should look solely to the evidence for the facts, and to the instructions of the court for the law of the case, and find their verdict carefully, without fear, prejudice or bias, and without reference to who is plaintiff and who is defendant.

"18. The jury are instructed that they have no right to disregard the testimony of defendant's witnesses, merely for the reason that they are in the employ of a railroad company. The credibility of witnesses should be judged of by the jury precisely the same as they judge of the credibility of other witnesses."

Verdict was returned for plaintiff, and judgment entered accordingly. Defendant has appealed.

Judgment reversed and cause remanded.

Dodge & Johnson for appellant.

1. The court erred in allowing Mrs. Cloud to state conversations had with one Conley, the road-master. This was hearsay, and a mere expression of an opinion; therefore improper and incompetent. The testimony as to the yield and the value of crops matured was inadmissible to prove the measure of damages. 20 S.W. 516.

2. Van Frank and Knobel were accomplished civil engineers, and they should have been allowed to give their opinions as experts. 7 A. & E. Enc. Law. 491; 3 Abb. (N. Y.), 607; 2 A. & E. R. Cas. 649; 5 R. I. 250; 30 Wis. 316; 44 id. 495; 98 N.Y. 645.

3. The verdict is contrary to the evidence. The questions of fact are identical, with those in the Yarborough case, 20 S.W. 515.

4. The second prayer given at plaintiff's instance was erroneous. The measure of damages was not the actual cash value of the crops destroyed, but the market value, at the time and place where destroyed. 20 S.W. 515. It was error to refuse defendant's prayers thirteen and fourteen. 92 Mass. 106-9; 34 Conn. 466; 73 Ind. 287; 33 Kas. 274; 69 Me. 521; 137 Mass. 277; 50 N.H. 376; 86 N.Y. 140; 12 R. I. 75; 37 Vt. 104; 62 Wis. 112.

5. The verdict was excessive. 20 S.W. 516-17.

Scott & Jones for appellee.

1. This action is not brought for having...