St. Louis, I. M. & S. Ry. v. Harris
| Decision Date | 09 October 1886 |
| Citation | 1 S.W. 609,47 Ark. 340 |
| Parties | ST. L., I. M. & S. RY. v. HARRIS |
| Court | Arkansas Supreme Court |
APPEAL from Poinsett Circuit Court, Hon. M. T. SANDERS, Circuit Judge, on exchange with Hon. W. H. CATE.
Judgment affirmed.
Dodge & Johnson for Appellant.
This case, in some of its features, is like St. L., I. M. & S Ry. v. Walbrink, ante, p. 330. See our brief in that case.
The gravamen of the complaint is the faulty construction of the road, and damage from changing the course of creeks in an unskillful manner. There was no evidence to prove this.
The first instruction of the court was misleading. All the others, in effect, told the jury they could not find for plaintiff, unless the work was done unskillfully and improperly.
The verdict was against the law and the evidence.
E. F Brown for Appellee.
We concede the right of appellant to enter upon appellee's land, and to erect its road-bed thereon in a proper and skillful manner, and to use the right of way for that purpose; but complain because it failed to do it, and show the unskillful manner in which it turned the several creeks on its right of way to the middle of appellee's farm where, through a culvert, it passed the water safely over its said right of way, where it unbridled it, and turned it loose, to scatter its deposits over forty acres of tillable land, by reason of which appellee lost his crop for the years 1882 and 1883; and that the land was thereby rendered valueless. See 77 Ill. 194; 28 N.H. 438; Am. Law Reg., N. S., vol. 3, p. 323; Wash. on Ease., 375; 35 Ark. 622; 5 Am. Ry. Cases, 53.
The appellee is the owner of a tract of land in Poinsett county, through which a branch of appellant's railroad has been constructed. Before the road was built his land was dry and tillable, but the road-bed diverted the waters of England creek, which had previously flowed in a westerly direction south of his land, from their natural channel, turned them into a ditch made in constructing the road-bed on the east side of the track, where they were confined until they reached a point about the middle of the appellee's field, when the current was turned west again through a culvert in the road-bed, and the waters permitted to flow over the appellee's land west of the track without a channel sufficient to confine them. Two creeks on the north of the land were also deflected from their regular course, and by turning them south through a continuation of this same ditch when they reached the road-bed north of this land, they were made to empty into England creek on the appellee's premises, thus making that part of his land west of the road the common reservoir for the three creeks to pour their floods into. None of this water ran upon his land until the road was built. The result is that only about one-half of the tract west of the railroad can be cultivated, and nearly all of it is subject to overflow and has been damaged by a deposit of clay left by the water.
For this injury the appellee recovered judgment against the company in the sum of $ 475, and the company has appealed to reverse it.
The defense interposed by the answer was that the right of way over the lands had been granted to the company by the appellee, by and before the road was built, and that the road had been constructed with care and skill.
No effort was made to show a necessity for so constructing the road-bed as to turn the currents of the England and other creeks over the appellee's land, but the company sought to justify its conduct under the appellee's deed for the location of...
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