#### Root Refiners, Inc., v. Robertson.

Opinion delivered February 27, 1928.

*355 Marsh, McKay & Marlin, for appellant.

Ragsdale & Matheney, for appellee.

Hart, C. J.,

(after stating the facts). According to the evidence adduced 'by the plaintiff, oil was allowed to escape from the refineries of the defendant and to flow into a running stream on 40 acres of land used by the plaintiff for watering the cattle on his dairy farm. The evidence for the plaintiff also shows that formerly the oil from the defendant’s refineries had flowed in another direction, and that it might easily be diverted from flowing- into the stream used by the plaintiff for watering- his dairy cattle. Under these circumstances the jury was warranted in finding that the defendant was liable for the pollution of the water in the running stream. Standard Oil Co. of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2.

It is nest insisted that the evidence showed that .the pollution of the stream was a permanent injury to the property rather than a continuing nuisance, and that the court erred in instructing the jury that the measure of damages would be the depreciation in the rental value caused by the pollution of the stream by the defendant allowing the oil from its refineries to flow into it. We do not think the court erred in instructing the jury on the measure of damages. According to the evidence for the plaintiff, the defendant had previously allowed the oil from its refineries to flow in another direction, and could easily have changed the flow of the oil from its refineries so as not to allow it to escape and flow into the running stream on the 40 acres of land used by the plaintiff in watering- his dairy cattle. The plaintiff did not own the land, but had a lease on it during the will of the owner. He used the stream in watering his dairy cattle, and it was suitable for that purpose before it was polluted by the defendant allowing- the oil from its refineries to flow into it. Under these circumstances there was only a temporary nuisance to the land, and the measure of damages in such cases is the diminished rental or usable value of the land. St. Louis S. W. Ry. *356 Co. v. Mackey, 96 Ark. 297, 129 S. W. 78, and Standard Oil Company of Louisiana v. Goodwin, supra.

It is. next insisted that there is no legal evidence to establish the rental value of the land. According to the testimony of the plaintiff, he had between 50 and 75 head of cattle in his dairy. The running stream was amply sufficient to' water these cattle before it was polluted by the defendant. The plaintiff had no other place to water them. The land belonged to the husband of his aunt, and he was given permission to use it as long as he wished to. He testified that the rental value of the land for the purpose of watering the cattle alone was $35 per month. The defendant polluted the stream by allowing the oil from its refineries to flow into it on • April 1, 1925, and continued to do so until the time of the trial in May, 1927. In stating the rental value of the land on which the running stream was located, the plaintiff was not speculating upon the value existing under conditions which he had never observed, but was basing his opinion upon a state of facts known to him. Hence it cannot be said that the evidence is not legally sufficient to support the verdict, or that there is no competent testimony of the usable value of the land for the purpose of watering the cattle.

The judgment therefore will be affirmed.