86 Ark. 91 | Ark. | 1908
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, as decisive of the question. In that case Judge Smiti-i, 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 occasions his loss.” The difference between that •case and this is that it is here proved that the change in the course o'f the stream was caused unnecessarily. It could have been avoided by the use of other practical means of crossing the stream and allowing the water to flow thereunder undisturbed.
In St. Louis, I. M. & S. Ry. Co. v. Harris, 47 Ark. 340, which was decided about the same-time the Walbrink case was decided, Chief Justice Cockriu, said: “No effort was made to show a necessity for so constructing the roadbed as to turn the current of the England and other creeks over the appellee’s land, but the company sought to justify its conduct under the appellee’s deed for the location of the road, granting among others ‘the right to change watercourses and taking water.’ While the grant of a right-of-way to the railroad carried with it a license to do all that was necessary for its proper construction, the company remained liable, nevertheless, for any proximate injury that resulted to the grantor from the want of care and skill in whatever work it undertook in order to effect the construction. * * * If the beds of the streams had been located on the appellee’s lands before the road was constructed, and an attempt had been' made ‘to change the watercourse',’ as the deed has it, it would have been incumbent on the company to perform this work so as to inflict no unnecessary injury upon the ¿ppellee; and if- the right of the company to bring the streams from the lands- of others on to the lands of the appellee be conceded, the duty remained upon it of so enjoying that privilege as not to injure the appellee more than would be.required in providing a proper channel for the water through the premises.”
No effort was made in the trial of the present case to show whether or not the cost of constructing a bridge or trestle over the stream or of running the culvert with the original course of the stream diagonally through the roadbed would exceed the cost of construction over the means adopted. It may be that the cost would be so much in excess of the cost of constructing the culvert in the way it was -done that it was not reasonable or practical to require the company to - adopt the former mode of construction. But that state of the case was not shown to exist. The engineer merely stated broadly that the company could, if.it had seen fit, have let the. water ■ through without diverting it by constructing either a bridge or trestle or a culvert running with the stream.
We think the jury were warranted in finding that it was unnecessary to divert the stream so as to cause an injury to appellee’s land, and that the company is liable for the damage.
Error of the court is assigned in refusing to instruct the jury that it was incumbent on appellees to “use ordinary care to protect their lands from injury, and that if they stood by and allowed such injury' to be done and made no effort to prevent the same” they could not recover. There was no evidence to base such an instruction upon, as it was not shown that they “stood by and allowed the injury to be done.” The evidence shows that the injury was caused by the first rise of the stream shortly after the construction of the culvert. The court properly refused to instruct upon an abstract proposition.
Objection was made to propounding the following question to witnesses for appellees: “Taking the actual value of the land at the completion of the work, supposing the consequences to be known, comparing it with what the value would have been if the flow had remained as formerly, and fixing your damages at the difference, what do you think would have been the damage?” This question was propounded to the witnesses after they had been shown to possess familiarity with the land in question before and since the alleged injury do it and knowledge of its value. In response to the question, each witness stated his opinion as to the amount of the damage. Each also described the land and the character of the injury to it. It is contended that it is not proper to permit witnesses to give opinions as to the amount of damages — that the statements of witnesses should be confined to facts so that the jury may estimate the damages. St. Louis, I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401; St. Louis, I. M. & S. Ry. Co. v. Law, 68 Ark. 218. This contention is undoubtedly sound in principle. But it will be observed that the question was so framed as to elicit the opinion of the witnesses as to difference between the value of the land before it was injured and after-wards'. That was the proper measure of damages, and it was competent to prove it in that way. Little Rock & Ft. S. Ry. Co. v. Evins, 76 Ark. 261; St. Louis, I. M. & S. Ry. Co. v. Ayers, 67 Ark. 371; Railway v. Combs, 51 Ark. 324.
In Railway v. Combs, supra, Chief Justice Cockrilu, speaking for the court, said: “Opinions are confessedly admissible to prove the value of the land before and after the construction of the railway; but the extent of the injury is the difference between their values, and that difference is the result reached by the answer to the single question, what damage has the land sustained? It is only a question whether the witness or the jury shall perform the mental process of subtraction, and that can be of .no judicial importance so long as the witness is required to show, in advance, such knowledge of the facts as to satisfy the judge that his opinion may be of value, and may be made to disclose the facts upon which it. is based.”
The evidence sustains the verdict, both as to liability and the amount of the damage.
Affirmed.