80 Ark. 80 | Ark. | 1906
This was an action to recover .damages on account of the construction of a levee by the defendant across the farm of plaintiff and the taking of land for a right of way therefor. While the damages allowed by the jury were liberal, the evidence, we think, was sufficient to sustain the verdict, and we find no error in the rulings of the court on the admission of evidence or in its instructions to the jury.
The main defense set up by the defendant seems to have been that the right of way to construct the levee had already been granted by a deed duly executed by plaintiff. This deed, which is set out in the statement'of facts, purports to convey “the right of way” over the land in question “for the purpose of constructing and maintaining any and all levees that may be built thereupon as a protection against overflows.” This deed was made out on a printed form for a deed prepared by the Levee Board, and recited a nominal consideration of $1.00. We are of the opinion that the deed gave only one right of way across the land; and when a right of way across the land was selected and occupied by the construction of a levee, the defendant could not construct another levee across the land on a different line without securing another right of way. We think that the circuit court correctly held that only one right of way could be taken under it, and that, after that had been selected and occupied, the power of the deed was exhausted, and no other right of way could be taken under it.
On the whole case we are of the opinion that the judgment should be affirmed, and it is so ordered.
