Railway v. Hunt

51 Ark. 330

• Court: Supreme Court of Arkansas
• Decided: November 15, 1888
• Status: Published

Opinion

Cockrill, C. J.

Railroads: Right of way: Damage to farm. In a proceeding by a railway to condemn a right of way,, the assessment of damages is not necessarily restricted to the injury done to the legal sub-division of land described in the. Petiti°xi. If the tract described is a part of a larger con-body of land, the owner may recover for the injury done to the tract as a whole. If the tract traversed by the road is part of a farm, its use as such is notice to the company that an injury to a part impairs the value of the whole, for the farm is a unit. It is not necessary, therefore, in such a case, that the owner should file an answer claiming compensation for the damages done to the residue of the tract in order to apprise the company what it is expected to pay for. Railway v. Doran, 15 Minn., 235 ; Hartshorn v. Ry., 63 Ia., 397. It is incumbent upon the company to pay for the direct injury caused by the building of the road; the statute imposes upon it the duty of filing a petition to adjust the damages, and when it inaugurates the statutory proceeding, the presumption is that it will perform its whole duty, and there is no necessity for an answer by the land owner, unjess for the purpose of claiming special damages which were not in contemplation on filing the petition. Railway v. Stroud, 45 Ark., 278.

In this case the tract over which the road was located and which alone was described in the complaint, was unfenced woodland, but the proof shows that it adjoined and was a part of the owner’s farm, and there was no pretence at the trial that the company was taken by surprise at the claim for damages to the residue of the tract, .and no specific objection was made on that account. It cannot avail now.

The court’s charge limited the jury to the consideration of such elements of damage as it has been frequently determined by this court, may be taken into account, and is not as broad as counsel for the appellant appear to apprehend.

The verdict appears to be a liberal award for the injury sustained, but it is within the range of the proof, and was satisfactory to the trial judge, whose opportunities for determining its fairness were better than ours. We will not disturb it.

Affirm.