St. Louis Southwestern Railway Co. v. Morris

• Decision Date: 14 October 1905
• Citation: 89 S.W. 846,76 Ark. 542
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MORRIS
• Court: Arkansas Supreme Court

89 S.W. 846

76 Ark. 542

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MORRIS

Supreme Court of Arkansas

October 14, 1905

Appeal from Lonoke Circuit Court, GEO. M. CHAPLINE, Judge.

Reversed.

Judgment reversed and cause remanded.

Sam'l H. West and Bridges & Wooldridge, for appellant.

The action is barred by the statute. 62 Ark. 360; 52 Ark. 240; 39 Ark. 463. It was error to instruct that the measure of damage would be the difference between what the land would have otherwise produced and what it did actually produce. 62 Ark 364; 56 Ark. 612, and cases there cited. The opinions of non-expert witnesses were inadmissible. 56 Ark. 612.

J. B Gray, Thos. C. Trimble, Joe T. Robinson and Thos. C. Trimble Jr., for appellees.

Appellant is liable. 39 Ark. 463; 44 Ark. 360; 59 Tex. 128; 54 Ark. 155; 36 L. R. A. 417; 32 L. R. A. 708. The action was not barred, recovery was sought for successive injuries. 56 Ark. 613; 52 Ark. 240; 36 L. R. A. 422-3; 79 Tex. 427.

OPINION

BATTLE, J.

On the 29th day of January, 1903, Lee Morris commenced an action against the St. Louis & Southwestern Railway Company to recover the damages he had suffered by reason of a ditch made by the defendant. He alleged in his complaint that the defendant had made, and was at that time maintaining, and had maintained, a ditch by means of which it collected in one channel a large amount of water, diverted it from its natural drainage, and discharged it in a mass upon certain lands of the plaintiff, which otherwise would have flowed in other directions; that his crops on these lands in the years 1900, 1901 and 1902 were materially injured by the increased flow of water caused by the ditch.

The defendant answered, and denied these allegations, and pleaded the statute of limitations of three years in bar of the action.

The issues in the case were tried by a jury. Evidence was adduced in the trial tending to prove the following facts: Prior to the year 1900, and more than three years before the commencement of this action, the defendant constructed a ditch, about one mile and a quarter or a mile and a half in length, along the east side of its railway, in Lonoke County. The lower end of it was near the land of plaintiff, and was obstructed by a ridge. Lateral ditches leading into and connected with it were dug by other parties without the knowledge or consent of the defendant. These ditches collected a large amount of surface water, diverted it from its natural drainage, and precipitated it upon the land of the plaintiff, and damaged his cotton crops growing thereon. This occurred in the years 1900 and 1901 and 1902. In each of these years thirty five or forty acres of plaintiff's land were overflowed. This land was planted in cotton, which was injured by the water thrown on it about one half. Other lands adjoining, and of the same quality, produced in the same years three-fourths of a bale for each acre. In this time the average price of cotton in the seed was two and a half cents a pound, and from 1800 to 2000 pounds of seed cotton made a bale. The cost of the production and gathering is not shown by the evidence.

During the progress of the trial witnesses who were not shown to be experts were allowed to testify, over the objections of the defendant, that plaintiff's land could have been drained and the overflow of it prevented by extending the ditch, made by the defendant, through a certain ridge.

The court instructed the jury, over defendant's objections, as follows: "You are instructed that if you find from the evidence that the plaintiff sustained any damage to his crops by reason of water being thrown on said land from a ditch constructed by the defendant railroad company, not into a channel, or live stream sufficient to carry off same, then the measure of his damages would be the difference between what the land would have otherwise produced and what it did actually produce." And refused to instruct them, at the request of the defendant, as follows:

"If the land of plaintiff has sustained damage by reason of a ditch dug by defendant, his cause of action accrued when the ditch was dug; and if it appears from the evidence that the ditches were dug more than three years before the filing of this suit, the jury will find for the defendant as to any damage to the land of plaintiff.

"The jury are instructed that, although they may find from the evidence that the defendant, in the construction of its road, excavated a ditch on its own right of way along the east side of its track, through which water at certain seasons of the year is discharged and carried upon the lands of the plaintiff, the defendant is not liable for damages on account of any water that may be brought into such ditch and discharged upon the land of plaintiff by artificial ditches extending into said railroad ditch and made without consent of defendant.

"The defendant is only liable to the plaintiff for such damages as may ensue from its own acts or the acts of its agents, and if the jury should further believe that the water from the adjoining lands have been conducted into such railroad ditch by artificial ditches made without the consent of the defendant, thereby increasing the flow of water through said ditch upon plaintiff's land, the defendant is not liable to the plaintiff for damages caused by water artificially brought into its ditch from adjoining lands without its consent, and the burden of showing that the railroad consented to such ditches being put into its right of way, and ditches hereon, rests upon plaintiff; and without evidence on that issue you will find for defendant."

The plaintiff recovered a verdict and judgment for $ 430, and the defendant appealed.

It is first insisted by appellant that this action is barred by the statute of limitations, because it was not brought within three years after the ditch was completed. Does it come within the rule which provides that actions for injuries caused by nuisances of permanent character shall be brought within three years after the construction of the nuisance? In St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331, the rule is stated as follows: "Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of."

St. Louis, I. M. & S. Ry. Co. v. Biggs, supra, was an action to recover damages sustained in 1885 on account of the destruction of plaintiff's levees, fences, and crops by an overflow alleged to have resulted from the negligent construction and maintenance of a railway embankment through the Red River bottom in 1873, without sufficient openings to permit the passage of water. The defendant pleaded the statute of limitation of three years in bar of the action. The railroad embankment was constructed in 1873. The Red River "bottoms," including the plaintiff's land, which was situated therein, was overflowed in 1876 and 1885. By reason of insufficient openings in the railway embankment, the water in cases of unusual overflow was impeded, and rose higher, and remained longer upon plaintiff's land than it had formerly done. In 1885 plaintiff's crops were destroyed, and her levee broken by water dammed by the embankment upon her land. This court held that that case could be brought within three years after the happening of the injury. That case, to some extent, explained the rule as laid down by the court.

Railway Company v. Yarborough, 56 Ark. 612, was an action similar to St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331, and was against the same defendant. Floods came, and, because the openings in the railway embankment were not sufficient to permit their passage, overflowed the plaintiff's land, and destroyed his crops. This court sa...