Cook v. St. Louis, Iron Mountain & Southern Railway Co.

Wood, J., (after stating the facts). The court erred in holding that appellants were estopped by their conductifrom maintaining their suits against the appellees. The fact that appellants knew, after the railway company had commenced to construct the viaduct, that the same was not being constructed according to the original plans and specifications and made no protest was not sufficient to estop appellants. The railway company did not act upon any conduct on the part of the appellants, and was not in any way misled by anything that the appellants did or failed to do and not induced thereby to construct the viaduct in a manner different from what it intended. Nothing that appellants did caused the railway company to expend more money than it otherwise would have expended. It was not incumbent upon the appellants to make complaint of the manner in which the. railway company was constructing the viaduct. They had no right to do so, and their protests would have been of no avail. The railway company had the right to construct the viaduct according to its own methods, in accordance with the act of the Legislature. As nothing that appellants could have done or said would have influenced or affected the conduct of the railway company in the building of the viaduct, and did not do so, appellants could not be estopped by failing to speak or act in the premises. They were not bound to speak or act. Mere silence or inertia under such circumstances will not work an estoppel. See Fox v. Drewry, 62 Ark. 316; Rhodes v. Cissel, 82 Ark. 367. Certainly, the appellants, by their silence, did not induce the railway company to believe that they would not ask for damages to their property that had not been comprehended in the contract or waiver. It is established that the appellants were suing for damages on account of the construction of the viaduct in a manner that was entirely different from that which had influenced them to sign the releases. Had the viaduct been constructed according to the original plans and specifications, as shown by the appellant’s allegations and their proffered evidence, appellants would have been benefited rather than damaged. At least the damages they sustained by reason of the construction of the viaduct according to the plans and specifications adopted at last by the railway company were not in contemplation of the parties at the time the waiver agreements were signed. In Warren & Ouachita Valley Rd. Co. v. Garrison, 74 Ark. 136, Mrs. Garrison conveyed to Howard a right-of-way for a wooden tramway over her land. Howard conveyed the right-of-way to a railway company. The court held that Howard had no right to increase the servitude by granting a right for a steam railway. The court said that “Mrs. Garrison might be willing to waive compensation for the first but not for the latter; that she having stood by and permitted the railroad track to be built does not estop her from recovering compensation for the injuries she has received.” A railway company is liable for the damages resulting to abutting property owners by reason of the construction of their roadbeds and other structures on its right-of-way along a street in such manner as to obstruct access to the premises. Hot Springs Ry. Co. v. Williamson, 45 Ark. 429; Little Rock & Ft. Smith Ry. Co. v. Greer, 77 Ark. 387. The court erred in directing verdicts in favor of the appellees, and in overruling appellants’ motion for new trials. The judgment is therefore reversed, and the causes remanded for new trial.