107 Ark. 65 | Ark. | 1913
(after stating the facts). The evidence showing the character of the obstruction to the flow of water through appellant’s land and the consequent effect thereof was undisputed. This testimony showed that the filling up of the old drain and the construction of the trestle for a new outlet for the water was of a permanent character and that its construction and continuance were necessarily injurious to appellant’s land. The testimony brings the present case clearly within the doctrine of this court as announced in St. L., I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, where we said: “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.” See to same effect St. L., I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360; Turner v. Overton, 86 Ark. 406; St. Francis Levee District v. Barton, 92 Ark. 411; Kelly v. K. C. So. Ry. Co., 92 Ark. 465; St. L., I. M. & S. Ry. Co. v. Magness, 93 Ark. 46.
Under the pleadings and the undisputed evidence, the court erred in directing a verdict, but it should have permitted appellants to prove, as they offered to do, the amount of the permanent damages to their land by reason of the nuisance complained of. The request and the offer were sufficiently specific under the pleadings. The court was asked, and it was its duty, under the evidence, to find whether or not the nuisance was of a permanent character, and under the uncontroverted facts it should have declared that the nuisance was permanent and granted the request of appellants to permit them to show the extent of the damage which they had incurred by reason of such nuisance. Appéllee’s answer, in which it set up that the damages sustained by appellants were “by reason of the permanent improvement of appellee’s roadway resulting in the decrease in the market value of appellant’s land by said permanent improvement,” and appellant’s reply to this, in which they also claimed that “if the nuisance was of a permanent character the lands would be damaged in the sum of $3,500,” and praying for such damages, were sufficient to have the cause sent to the jury on the issue of the extent of appellant’s damages. Under the pleadings and the evidence the court should have treated the case as one instituted to ascertain the amount of the damages to appellants, if any, by reason of the filling of the old drain and the construction of the culvert. It was a question of law for the court to declare that the character of the nuisance complained of was permanent, but it was an issue for the jury as to the amount of the damages. The appellants were in apt time in their offer to introduce evidence to show the amount of their damages, and the court erred in refusing them that privilege and in directing a verdict in favor of the appellee.
The judgment, for the error indicated, is therefore reversed and the cause is remanded for a new trial.
