St. Louis, Iron Mountain & Southern Ry. Co. v. Brooksher

• Decision Date: 20 April 1908
• Citation: 109 S.W. 1169,86 Ark. 91
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. BROOKSHER
• Court: Arkansas Supreme Court

109 S.W. 1169

86 Ark. 91

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. BROOKSHER

Supreme Court of Arkansas

April 20, 1908

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed.

Affirmed.

T. M Mehaffy and J. E. Williams, for appellant.

1. Having acquired by deed its right-of-way through the land including the express provision therein of the right to change the watercourses, appellant was not liable to the appellees, the evidence disclosing nothing more than the damage resulting from that change. 47 Ark. 334. This is the right which the company had purchased and paid for; hence the allegation and attempt to prove unskillfulness in the work of constructing the culvert running straight the stream, instead of diagonally, has no place in this case.

2. The court erred in admitting incompetent evidence as to the amount of damages. Witnesses should not be permitted to estimate the amount of damages, but should testify to the conditions and facts, and it is for the jury to draw their own conclusions from these facts uninfluenced by the opinions of witnesses. 71 Ark. 302; 47 Ark. 501; 67 Ark. 375; Sedgwick on Damages, § 1293; Lawson, Expert and Op. Ev. 448; 68 Ark. 224; 70 Ark. 401.

3. The court should have given the first instruction requested by appellant. No one is permitted to allow his damages to accumulate, or to magnify the same by his negligence or failure to take such reasonable precautions as are within his power to minimize the damage. 38 Ark. 357.

W. S Chastain and Frank Pace, for appellee.

1. The Walbrink case, 47 Ark. 330, relied on by appellant, supports the appellees' contention, they having alleged and proved an unnecessary, negligent and unskillful construction of the culvert. The right granted in the deed to make changes in the stream does not confer upon appellant the power unnecessarily and negligently to do so. No effort is made to show any necessity for changing the stream so as to throw the water upon appellees' land. The company owed the duty to appellees to make a reasonable expenditure to avoid injuring them. 47 Ark. 340.

2. There is no evidence on which to base the instruction No. 1 requested by appellant, but on the contrary the evidence shows that the damage occurred at the first rise after the culvert was constructed. 47 Ark. 340.

3. Appellant's objection to admission of witnesses' estimates of damages is untenable, and cases cited by it do not apply here. It is not contended that the opinion of a witness given abstractly to a gross amount is competent, but there was in this case a sufficient showing of facts to enable the jury to fix the amount of damages. It was necessary to rely to some extent on the opinions of witnesses, but such opinion evidence was based on a legal foundation. 66 Ark. 498.

OPINION

MCCULLOCH, J.

This is an action instituted by appellees, the widow and heirs of W. R. Brooksher, against appellant railway company to recover damage done to their lands, which adjoin the right-of-way of the railroad, by reason of construction of a culvert under the roadbed, whereby the waters of a certain creek were diverted from the original channel and caused to flow over the land in question. They recovered a judgment for damages, and the railway company appealed.

Before the construction of the railroad, W. R. Brooksher and wife, by deed duly executed, conveyed to the company a right-of-way through the land in question, and expressly granted "the right of changing watercourses." The roadbed was constructed diagonally across the creek, and the culvert was built straight through the dump or roadbed, so as to change the course of the stream, and cause it to flow over the land, and make a different channel. The evidence shows that the culvert was skillfully constructed, and is of sufficient size to permit the waters of the stream to pass through.

Is the railway company, under these circumstances, liable for the damage done to the land? The damage was caused, not by any unskillfulness in the construction of the culvert, but solely by reason of the changing of the course of the stream. The evidence shows that the diversion of the course of the stream could have been avoided, and the consequent injury to the adjoining land obviated, by bridging the stream, instead of putting in the culvert, or by running the culvert with the original course of the stream diagonally through the roadbed. The engineer of the road testified that this could have been done.

But, after all that is said, the controlling question recurs to the proposition that the damage was caused solely by the diversion of the course of the stream, and whether the terms of the deed gave the railway company the right to unnecessarily inflict damage in that way without compensation to the owner of the land.

Appellees' ancestor expressly consented, by the terms of his deed, to a change in the course of the stream, and it is contended that they are thereby precluded from recovering damage thus inflicted. The company undoubtedly purchased the right to change the course of the stream, but did this give it the right to do so unnecessarily to the injury of adjoining lands?

Appellant relies upon the case of St. Louis, I. M. & S. Ry. Co. v Walbrink, 47 Ark. 330, 1 S.W. 545, as decisive of the question. In that case Judge SMITH, in delivering the opinion of the court, said: "The diversion of the watercourse was expressly authorized by the terms of the deed; and the defendant is not liable for consequential damages resulting therefrom, it not being alleged nor proved that the work was done unnecessarily, or negligently, or unskillfully. No man can maintain an action for a wrong where he has consented to the act which...