St. L., I. M. & S. Ry. v. Walbrink

Smith, J. The complaint in brief charged : 1. That in 1881, plaintiff being the owner of “part of’ southwest quarter of southeast quarter, section 24, township 11 north, range 3 east,” donated to the defendant railway company a right of way over said land. That under said grant, defendant, in 1882, constructed its. .railroad tracks over said land. That the right of way donated was of the width of one hundred feet. That in order to construct its roadway, defendant removed the fencing on said land and neglected or refused to replace it, or to erect “ cow gaps,”’ or other means to protect the growing crops ; by which action plaintiff was prevented from raising a crop for the year 1882. 2. That defendant, building its roadway, without the consent of plaintiff changed the natural channel of a creek across and upon the land of plaintiff outside of the right of way so-granted; and in order to do so, tore down and removed other fencing upon lands outside of and not upon any part of the said granted right of way, and did dig and remove large amounts of soil therefrom. For all of which plaintiff asked one hundred dollars damages. The defendant justified under a license from the plaintiff. Evidence was given, tending to show that, before the building of the road, the plaintiff’s land was under one and the same enclosure; that the railroad divided it into two parts, leaving his dwelling-house, stable, well and orchard on one side, and a field of four acres on the other side; that the defendant tore down the plaintiff’s fences at the points where its line entered and left his land, and did not erect cattle guards at these points, nor rebuild the fences; and that the plaintiff was, in consequence, compelled to build two lines of fencing, parallel to the road, at an expense of $60. Also, that the defendant, in constructing its road-bed and for the protection thereof, had changed the channel of'a creek, which flowed in a westerly direction across the land, so as to make it run north; and had put in a bulk-head of plank next to its road-bed,' which deflected the water towards the orchard, and abraded the land, the loss of ground by the wash being a parcel sixty-nine feet in length by twenty-two feet in width. Defendant then .read to the jury the following deed from plaintiff to defendant: “Know all men by these presents: That I, Frank Walbrink, and Sarah Walbrink, his wife, of the county of Poinsett and State of Arkansas, for and-in consideration of one dollar to us paid by the St. Louis, Iron Mountain and Southern Railway Company, and in consideration of the benefit to accrue to us from the building of said company’s road, do hereby give, grant, bargain,’ sell and convey to said company, a right of way, being one hundred feet wide, the middle thereof to be the center of the track of said road, with the right of increasing the width of the same for necessary slopes, embankments and turnouts, and the right of changing water courses and taking a supply of water, and borrowing or wasting earth or stone outside of said limits, and of felling any trees which might endanger said railroad as the said track shall be finally located,.' through and across the following described lands, lying in the county of Poinsett, and state of Arkansas, to-wit: “ One lot adjacent to the town of Plarrisburg, being a part of' the southwest quarter of the southeast quarter of section 24,. township 11 north, range 3 east of the fifth principal meridian, reserving to myself the right to cultivate such part of the right of way as is not actually used by said railway for more track or switches ; and with the stipulation, that no houses or bridges be built thereon, except depot of the company, with the-right to enter upon said land and take timber necessary for the construction of said railway through and upon the same; to have and to hold the same to said company, so long as used for the purposes of a railroad and no longer.” The circuit court charged in effect that, notwithstanding his deed, the plaintiff was entitled to recover such damages as the proof showed he had sustained by reason of the acts and omissions complained of; and the jury returned a verdict for $95. ' 1. Righ Way: U i ing water c< t oi 7urse The diversion of the water course was expressly authorized by the terms of the deed; and the defendant is not liable for the 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. Nor was the company'under any obligation, after it had rightfully and properly turned the stream, to observe the action of the water and protect the banks, or take other timely measures to prevent the encroachment of it.upon the adjacent lands. Norris v. Vt. Central R. Co., 28 Vt., 99; Boothby v. Androscoggin, etc., R. Co., 51 Me., 318; Hortsman v. Lex. & Cov. R. Co., 18 B. Monroe, 218. 2 Fencing, guards'. Cattle' 3. Right of wasy: Dam" The execution of the conveyance placed the parties in the same relative situation, and gave to each precisely the same rights as if the railroad company had caused the land to be condemned for a right of way and had paid the award of damages. In either case, the company is authorized to do whatever is lawful in the construction and management of its road ; and the owner’s claim for injury to the rest of his land is released, except as it arises from faulty construction. We have no statute, and there is no principle of the common law, which obliges a railroad corporation to fence its track, or to provide cattle guards where the line traverses improved lands. It is r . . true the additional fencing rendered necessary by the building of the road is an element of damage in estimating the owner’s .compensation. But where he conveys the right' of way by agreement, he waives in advance all such damages, it being presumed that these are included in the purchase price. North & West Branch R. Co. v. Snauk, 105 Pa., St., 555; Alton & Sangamon R. Co. v. Baugh, 14 Ill., 211. Reversed and remanded for further proceedings not inconsistent with this opinion.