Railway v. Hunt

• Decision Date: 13 April 1889
• Citation: Railway v. Hunt, 51 Ark. 330, 11 S.W. 418 (Ark. 1889)
• Parties: RAILWAY v. HUNT
• Court: Arkansas Supreme Court

11 S.W. 418

51 Ark. 330

RAILWAY v. HUNT

Supreme Court of Arkansas

April 13, 1889

APPEAL from Washington Circuit Court, J. M. PITTMAN, Judge.

The Fayetteville and Little Rock Railway Company filed its petition against Thomas J. Hunt to condemn as a right of way a strip of ground one hundred feet in width through a forty acre tract of Hunt's lands. The defendant filed no answer. The tract described in the plaintiff's petition was unfenced timbered land, but it was one of several adjoining tracts belonging to the defendant, embracing a farm on which he resided, and the court below admitted evidence to show the damages to the entire property which would result from the construction and operation of the road through the tract across which it was located.

Affirm.

B. R Davidson, E. D. Kenna and E. C. O'Day, for appellant.

1. It was error to allow an assessment of damages for injury to lands not embraced in the petition. If defendant desired to claim damages to land not so described, he should have filed an answer setting up such claim. 90 Ill. 316; Wood Ry. Law 934; Mills Em. Dom., p. 167; 44 Ark. 261; 45 Id., 278; 41 Id., 433.

2. No damages should have been allowed for injury to lands other than the tract through which the railway ran. See 15 Minn 230; 6 Hun., (N.Y.) 146; Wood on Railroads, p. 934; 103 Mass. 10; Mills on Era. Dom., sec. 167.

3. Extra fencing is not an element of damages when condemning unfenced woodland. Wood on Railroads, p. 917; 74 N.C. 220.

J. D. Walker, for appellee.

OPINION

COCKRILL, C. J.

In a proceeding by a railway to condemn a right of way, the assessment of damages is not necessarily restricted to the injury done to the legal sub-division of land described in the petition. If the tract described is a part of a larger connected body of land, the owner may recover for the injury done to the tract as a whole. If the tract traversed by the road is part of a farm, its use as such is notice to the company that an injury to a part impairs the value of the whole, for the farm is a unit. It is not necessary, therefore, in such a case, that the owner should file an answer claiming compensation for the damages done to the residue of the tract in order to apprise the company what it is expected to pay for. Railway v. Doran, 15 Minn. 230; Hartshorn v. Ry., 63 Iowa 397. It is incumbent upon the company to pay for the direct injury caused by the building of the road; the statute imposes upon it the duty of filing a petition to adjust the damages, and when it inaugurates the statutory proceeding, the presumption is that it will perform its whole duty, and there is no necessity for an answer by the landowner, unless for the purpose of...