63 Ark. 251 | Ark. | 1896
(after stating the facts.)' It appears from the testimony in this case that the land of the appellee, upon which the appellant has a right of way, and upon which the spring is situated, was, at the time this suit was brought and the cause was tried, in the possession of a tenant of the appellee, and had been in the possession of such tenant since the building by the appellant of the fence enclosing' the right of way and the spring thereon situate.
It does not appear that there was any evidence that any damage had been done to the reversion, and, if there was any damage, it must have been to the right and interest which the tenant had in the possession of the land by virtue of his tenancy, and it follows therefore that there was no right of action in the plaintiff; that the right of action, if there was any, was in the tenant, who, as. we understand, was in possession when the wrong was done of which the appellee complains, and held continuous possession until after the institution of this suit.
It appears that the structure complained of was a fence, which, according to the adjudged cases, as we understand them, being temporary and not permanent in its character, gave to the party who might be entitled to sue for any damage consequent upon its erection a right to. sue for such damages only as had accrued before the institution of the suit, and a right to bring successive actions for damages consequent upon the continuance of the structure thereafter, if the same was wrongful. It is not to be presumed that the railroad company would persist in the wrongful continuance of the fence, or that the party who might be entitled to damages for such wrong could foresee all the damages that might occur from a wrong which might occur in the future and which might never occur. Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Nashville v. Comar, 88 Tenn. 415.
Nor the want of evidence showing any damage to the appellee, the judgment is reversed, and the cause is dismissed, without prejudice.
