St. Louis, I. M. & S. Ry. Co. v. Saunders

• Decision Date: 30 April 1906
• Citation: 94 S.W. 709
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SAUNDERS.
• Court: Arkansas Supreme Court

94 S.W. 709

ST. LOUIS, I. M. & S. RY. CO. v. SAUNDERS.

Supreme Court of Arkansas.

April 30, 1906.

Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.

Action by John B. Saunders against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

B. S. Johnson, for appellant. Jno. E. Bradley, for appellee.

HILL, C. J.

Saunders owned a large and fertile farm on Terre Noir creek in Clark county. Approximately speaking, the railroad track ran north and south, crossing Terre Noir at right angles. The general course of this stream was west to east. The distance between the foot hills of the Terre Noir valley was 8,400 feet according to Saunders' evidence, and 6,500 feet according to the railroad's evidence. The difference is immaterial, and only affects the percentage of the openings in the railroad embankment. There is practically no conflict of evidence as to the extent of the openings, and, averaging the estimates given, it may be assumed that 13 per cent. of the length of the embankment, or "dump," as it is called, was open space for the passage of water. The dump was four to five feet high. Terre Noir was a very tortuous stream, and it was a neighborhood saying that it overflowed every time it thundered. The railroad was constructed in 1873. In 1882 the high water washed away the roadbed in the bottoms of Terre Noir, and in 1892 water ran over the dump in 18 places, and in 1902 the water came up almost up to the track. The dump had been raised some 18 inches since the 1882 overflow. There was some evidence that the 1882 overflow was the highest, and some that the 1902 was the highest. Saunders sued the railroad, alleging injury to his crops in 1902 by reason of the unskillful and negligent construction of the railroad dump, in that it was so high that it obstructed and retarded the passage of water in times of overflow, and in not leaving sufficient openings in the dump to let the water, in times of overflow, pass off and flow as it naturally would do, but for such obstruction and insufficient openings. The action was not for causing the overflow, but for hindering the natural drainage in time of overflow. Saunders recovered a verdict for $1,500, and the railroad appealed.

1. The principal contention of the appellant is that the verdict is contrary to the evidence and was not sustained by the facts. That this creek was subject to overflow as far back as the memory of man runneth is plain from the evidence; that much destruction was wrought by it before the railroad was built is established; and that, since the railroad was built, frequently there has been much destruction of crops, both above and below the railroad dump, is fully proved. But the appellee has established by an overwhelming weight of evidence that in times of overflow the water is from 18 inches to 2 feet higher on the upper than the lower side of the dump. While some of this testimony must be discounted for the difficulty of making such estimates with the eye, yet in one overflow a witness put it to the test of the level and found it 12 inches higher at one place and 15 inches higher at another. The effect of thus damming the water was to cause it to stay on the Saunders farm several days longer than it otherwise would, and changed the character of the water from...