{ "id": 1344048, "name": "McAlister v. St. Louis, Iron Mountain & Southern Railway Company", "name_abbreviation": "McAlister v. St. Louis, Iron Mountain & Southern Railway Co.", "decision_date": "1913-02-17", "docket_number": "", "first_page": "65", "last_page": "70", "citations": [ { "type": "official", "cite": "107 Ark. 65" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "86 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521543 ], "opinion_index": -1, "case_paths": [ "/ark/86/0406-01" ] }, { "cite": "93 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546888 ], "opinion_index": -1, "case_paths": [ "/ark/93/0046-01" ] }, { "cite": "92 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "75 Ark. 183", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "44 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893420 ], "opinion_index": -1, "case_paths": [ "/ark/44/0293-01" ] }, { "cite": "33 Ark. 56", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721580 ], "opinion_index": -1, "case_paths": [ "/ark/33/0056-01" ] }, { "cite": "75 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502522 ], "opinion_index": -1, "case_paths": [ "/ark/75/0325-01" ] }, { "cite": "38 Ind. 67", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "73 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504013 ], "opinion_index": -1, "case_paths": [ "/ark/73/0407-01" ] }, { "cite": "67 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152565 ], "opinion_index": -1, "case_paths": [ "/ark/67/0371-01" ] }, { "cite": "35 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873852 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/35/0622-01" ] }, { "cite": "52 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913362 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/52/0240-01" ] }, { "cite": "76 Ark. 542", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501112 ], "opinion_index": -1, "case_paths": [ "/ark/76/0542-01" ] }, { "cite": "72 Ark. 127", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505642 ], "opinion_index": -1, "case_paths": [ "/ark/72/0127-01" ] }, { "cite": "56 Ark. 612", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326182 ], "opinion_index": -1, "case_paths": [ "/ark/56/0612-01" ] }, { "cite": "95 Ark. 297", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543467 ], "opinion_index": -1, "case_paths": [ "/ark/95/0297-01" ] }, { "cite": "99 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314445 ], "opinion_index": -1, "case_paths": [ "/ark/99/0128-01" ] }, { "cite": "93 Ark. 47", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "92 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548627 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/92/0465-01" ] }, { "cite": "62 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905722 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/ark/62/0360-01" ] }, { "cite": "105 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347103 ], "opinion_index": -1, "case_paths": [ "/ark/105/0106-01" ] }, { "cite": "22 App. D. C. 181", "category": "reporters:state", "reporter": "App. D.C.", "case_ids": [ 1344655 ], "opinion_index": -1, "case_paths": [ "/app-dc/22/0181-01" ] }, { "cite": "86 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521543 ], "opinion_index": 0, "case_paths": [ "/ark/86/0406-01" ] }, { "cite": "93 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546888 ], "opinion_index": 0, "case_paths": [ "/ark/93/0046-01" ] }, { "cite": "92 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "52 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913362 ], "opinion_index": 0, "case_paths": [ "/ark/52/0240-01" ] }, { "cite": "92 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548627 ], "opinion_index": 0, "case_paths": [ "/ark/92/0465-01" ] }, { "cite": "62 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905722 ], "opinion_index": 0, "case_paths": [ "/ark/62/0360-01" ] } ], "analysis": { "cardinality": 545, "char_count": 11419, "ocr_confidence": 0.491, "pagerank": { "raw": 9.750506899094999e-08, "percentile": 0.5310589536301151 }, "sha256": "7e670e7ca1f4077f6d9a54225eca65d6daeac95e05cfb11128edf28566ee532c", "simhash": "1:6dc1f4b85af393f5", "word_count": 2025 }, "last_updated": "2023-07-14T20:18:15.327905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McAlister v. St. Louis, Iron Mountain & Southern Railway Company." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). The evidence showing the character of the obstruction to the flow of water through appellant\u2019s 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\u2019s 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: \u201cWhenever 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.\u201d 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.\nUnder 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. App\u00e9llee\u2019s answer, in which it set up that the damages sustained by appellants were \u201cby reason of the permanent improvement of appellee\u2019s roadway resulting in the decrease in the market value of appellant\u2019s land by said permanent improvement,\u201d and appellant\u2019s reply to this, in which they also claimed that \u201cif the nuisance was of a permanent character the lands would be damaged in the sum of $3,500,\u201d and praying for such damages, were sufficient to have the cause sent to the jury on the issue of the extent of appellant\u2019s 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.\nThe judgment, for the error indicated, is therefore reversed and the cause is remanded for a new trial.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "John H. Crawford, for appellant.", "E. B. Kinsworthy, R. E. Wiley and W. G. Riddick, for appellee." ], "corrections": "", "head_matter": "McAlister v. St. Louis, Iron Mountain & Southern Railway Company.\nOpinion delivered February 17, 1913.\nAppeal and error\u2014permanent nuisance\u2014obstruction of drainage\u2014 law and fact.\u2014In an action by an adjacent land owner against a railway for damages to his land from overflow, caused by the filling of an old drain and the construction of a culvert, it is a question of law for the court, under the pleadings, to declare that the character of the nuisance complained of was permanent, but it was for the jury on the issue of damages, and it is error to withdraw the case from the jury.\nAppeal from Clark Circuit Court; Jacob M. Carter, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nThe appellants were tbe owners of certain farm lands in Clark County. The appellee is a railroad corporation, having a line of road running through these lands. The appellants sued the appellee, setting up that appellee had negligently closed a certain drain and opened a culvert through its roadbed on appellant\u2019s land, and that by reason of such negligence, on July 15 and on August 15, 1911, appellant\u2019s crops were greatly damaged and destroyed on account of heavy rainfalls occurring on the above dates respectively. The damages to the crops were specified, aggregating $1,152, for which appellants prayed judgment.\nThe appellee denied the allegations as to the negligent construction of the drain and culvert and denied the damages, and set up that it \u201cdid open the culvert complained of; that the said culvert is a permanent improvement made for the protection of its roadbed; \u2019 \u2019 and alleged that if appellants \u201chave sustained damages it was by reason of the permanent improvement of its roadway, and that the only damage is the decrease in the market value of their land by said.permanent improvement.\u201d\nThe prayer was that \u201cif judgment be rendered against it that it be for the decrease in the market value of the lands and not for damages to crops grown thereon.\u201d\nAppellants replied to the answer, denying that it was necessary to construct the drain and culvert in the manner alleged, and stating that \u201cif it should be determined, in accordance with the allegations and prayer of defendant\u2019s answer, that plaintiffs are entitled to permanent damages only, then they allege that they had seventy-seven acres in the tract described in the complaint, the value of which will be damaged by the continuance of said new opening, if same is permitted to remain, and that said lands would be damaged $3,500;\u201d and concluding with the prayer that \u201cif permanent damages only are to be allowed, they pray for alternate relief, for $3,500.\u201d\nThere was testimony on behalf of the appellants tending to show that in May, 1910, appellee constructed a culvert under its track and at the same time closed an old drain on the lands of appellants that ran under its tracks. Appellants\u2019 farm lands lay on both sides of the railroad. Before the old drain was closed and the new culvert constructed the water would back up a little, but \u201cwould run off easily as soon as it could get through the old drain.\u201d In 1911 there was \u201can awful rainfall. The water hit the sills of the trestle.\u201d The water stayed on the land three or four days, damaging appellants\u2019 crops, which damages are specified.\nThere was testimony tending to show that the land was wetter since the trestle was constructed than it was before. Before the trestle was constructed the water was not precipitated on the land as it is now, and it did not stand there as it did in 1911 when the damage to the crops occurred.\nThe testimony on behalf of the appellee tended to show that the trestle complained of was put in because of a necessity for a change of drainage along appellee\u2019s track through appellants\u2019 land at the point complained of. The old drain was closed and the new trestle under the track was put in at the- point complained of \u201cto prevent danger to traffic and water waste to the track. It is absolutely essential for the railroad, in order to protect its roadbed and render it safe, to maintain this culvert. The lowest point for the natural drainage is where the new culvert was located. It was installed to be a permanent improvement and was necessary to protect the track at that point.\u201d\nAnother witness testified that \u201cthis new opening was in the nature of a betterment to forestall possible washouts and to take care of such conditions as we had in 1905 and 1908.\u201d\nThe record shows that \u201cat the trial the plaintiff offered to prove what would have been the permanent damages to plaintiffs\u2019 land provided the court should hold that they were only entiled to recover permanent damages to the land, and not damages to the crop of 1911. The said witnesses were ready to testify as to the amount of said permanent damages to the land, but the court refused to allow them to do so, and to this refusal plaintiffs at the time excepted and asked that their exceptions be noted of record, which was done. \u201d\nThe court instructed the jury to return a verdict for the defendant. The appellants excepted to the court\u2019s peremptory instruction. From a judgment in favor of the appellee appellants duly prosecute this appeal.\nJohn H. Crawford, for appellant.\n1. In a case where a verdict is instructed against the party appealing, if there is any legal, prima facie evidence in the record that would support a verdict, it should be the rule that the abstract would be sufficient if it covers that evidence without making reference to the evidence that may have been introduced by appellee. Here the matter to be determined is whether or not appellant\u2019s evidence is sufficient on which to base a verdict when given its strongest probative force; and, regardless of the case made by the, appellee, if he has made out a prima facie ease, he is entitled to have it submitted to a jury. 22 App. D. C. 181, 62 L. B. A. 875.\n2. The court erred in directing the verdict because of the disputed questions of fact whether or not it was necessary to close the old drain and open a new one, and whether or not the construction of the culvert was such a permanent improvement as would call for the assessment of damages to the land only and not to the crops. 97' Ark. 438; 105 Ark. 106.\n3. Appellee had no right to obstruct and close the natural drain, and when it did so without appellant\u2019s consent they were entitled to compensation for their damages. Acts 1909, p. 897; 62 Ark. 360; 92 Ark. 465; 93 Ark. 47; 99 Ark. 128; 95 Ark. 297.\n4. The new culvert was not a necessary permanent improvement, but falls within that class of cases where when the improvement is first put in it is not certain that it will cause injury, and is not necessarily dangerous but might or might not cause injury, owing to rainfall conditions. 56 Ark. 612; 72 Ark. 127; 76 Ark. 542; 52 Ark. 240.\nEven if the improvement complain ed of was of a permanent character it would not fall within the rule in the Morris case, 35 Ark. 622, and the Anderson case, 62 Ark. 360, unless it was a necessary one to be maintained for the protection of appellee\u2019s track and for the public good, and was of a necessarily injurious character.\nE. B. Kinsworthy, R. E. Wiley and W. G. Riddick, for appellee.\n1. An offer to prove \u201cwhat would have been the permanent damages to the land provided the court should hold\u201d that appellants were entitled to recover only permanent damages, without showing what the evidence was, or that the witnesses were competent to testify on the point, or that the testimony to be offered was competent and admissible, is too broad, and is not a good offer of testimony. 67 Ark. 371-375; 73 Ark. 407; 38 Cyc. 1332; Id. 1333, 1334; 38 Ind. 67; Elliott, App. Proc. \u00a7 743. It is clearly within the discretion of the court to refuse admission of testimony offered after all the evidence was in. 75 Ark. 325; 38 Cyc. 1367.\nThe prayer in the appellant\u2019s reply for damages for the permanent injury to the land, if the court should decide that they were entitled to permanent damages only, ' was not such a pleading as is recognized by onr practice. It is of no effect whatever, and the court should have struck it out. Kirby\u2019s Dig. \u00a7 6108; 33 Ark. 56; 44 Ark. 293; 75 Ark. 183.\n2. The damage resulted from a permanent improvement and was original. For such an improvement the recovery would be for the entire damage, present and prospective. 92 Ark. 411; Could on Waters, 416; 52 Ark. 240; 62 Ark. 360; 93 Ark. 46; 35 Ark. 622; 92 Ark. 465; 86 Ark. 406." }, "file_name": "0065-01", "first_page_order": 83, "last_page_order": 88 }