Little Rock & Ft. Smith Railway Co. v. Wallis

■ Battre, J., (after stating the facts.) Was plaintiff entitled to recover? In Little Rock & Ft. Smith Ry. Co. v. Chapman, 39 Ark. 463, it was held -that “a railroad company has no right, in the use of- its right-of-way, -to injure the lands of upper proprieters by flooding them with surface water which had been' used to pass over the right-of-way, when by reasonable care and expense it might, consistently with the enjoyment of the right-' of-way, leave a free passage for the water.” To the same effect the court held in Baker v. Allen, 66 Ark. 271. Under the rule-laid down in these cases and the evidence adduced in this case, the railroad was liable for damages. Railway Company v. Cook, 57 Ark. 387. Appellant complains of the measure of damages adopted in this case. The court instructed the jury in that respect as follows : “The court instructs the jury that if you find for the plaintiff, then you will assess his damages at a sum that will fairly compensate him for the actual value of -the crops at the time of -their destruction, with six per cent, interest thereon from the date of such destruction, in the event you should find from the evidence that the said crops or any part thereof were destroyed. And in the event you should find from the evidence that said crops or any part thereof were injured and damaged by such overflow, then you will find in favor of the plaintiff in a sum that will fairly •compensate him for the actual value of such injury or damage to such crop or any part thereof.” This is substantially the rule laid down in such cases by this court. Railway Co. v. Yarborough, 56 Ark. 612; Railway Co. v. Lyman, 57 Ark. 512; Railway Co. v. Cook, 57 Ark. 387. The testimony of Frauenthal, if incompetent, was .not prejudicial. J. A. Wallis, the plaintiff, testified that in 1902 the roadbed of the Little Rock & Ft. Smith Railway Company ran through his farm, and in that year was rebuilt and reconstructed at that place, and while this work was going on he had a conversation with a Mr. Dalton, who was the superintendent of that company, and was superintending the work at the time, and that he informed him that the company was doing the work of rebuilding and reconstructing the roadbed. Daniels testified that the Little Rock & Ft. Smith Railway Company reconstructed and rebuilt its railroad embankment through the lands of appellee near Palarm station in Faulkner County, Arkansas; that they raised the embankment from eight to twelve feet at that place, closed up one trestle entirely, and also closed another trestle, placing, however, in that opening two tiles. G. A. Merrick testified that he was a surveyor and civil engineer; that the roadbed of the Little Rock & Ft. Smith Railway Company runs through the land of plaintiff; that in 1902 the roadbed at that place was reconstructed and rebuilt, and “that he was employed by that company to obtain deeds for right-of-way where the roadbed was changed, and that he did obtain such deeds in 1902 at the time of the rebuilding and reconstruction of the roadbed, and that all such deeds for roadbed and right-of-way were executed to the Little Rock & Ft. Smith Railway Company, and that he made surveys for the Little Rock & Fort Smith Railway Company at that time for the purpose of describing the lands in such deeds for right-of-way; that he obtained deeds for right-of-way for the Little Rock & Ft. Smith Railway Company from Mr. Wallis, the plaintiff, during 1902 when the roadbed was rebuilt and reconstructed at his place, and part of the railroad embankment for which he obtained deed at that time ran through the farm of Mr. Wallis. He also testified that he settled with parties for claims that they had against the railroad in 1902 growing out of the rebuilding of the roadbed in that year, and in making these settlements he was representing the Little Rock & Ft. Smith Railway.” This testimony was uncontroverted. If ■ the testimony of Frauenthal had been excluded, the uncontr.adicted testimony in the case showed that the Little Rock & Ft. Smith Railway Company owned the roadbed of the railway through the plaintiff’s land, 'and did the work of rebuilding and reconstructing it in 1902. The evidence was .sufficient to sustain the verdict of the jury. Judgment affirmed.