St. Louis, Iron Mountain & Southern Railway Co. v. Miller , 107 Ark. 276 ( 1913 )

Hart, J.,

(after stating the facts). It is conceded that the digging of the ditch diverted the water from its usual and ordinary course and collected it in a body and cast it in greater volume into the bayou, thereby overflowing appellee’s land, and that whatever injuries were done to appellee’s land were apparent from the time the ditch was constructed; and were permanent injuries to his land.

In such cases the measure of damages is the difference between the market value of the land before and after the construction of the ditch. St. L. I. M. & S. Ry. Co. v. Morris, 35 Ark. 622; St. L. I. M. & S. Ry. Co. v. Magness, 93 Ark. 46, and cases cited.

Counsel for appellant also concede that this is the measure of damages, hut they contend that the court did not so instruct the jury. In the instruction complained of, the court in effect told the jury that the measure of damages in this character of cases is the difference between the value of the land before and after the construction of the ditch. Counsel insist that the instruction was erroneous because the court did not use the words “market value.” The jury evidently understood the court to mean ‘ ‘ market value. ’ ’ The appellee himself testified what the market value of his land was before and after the construction of the ditch. All his witnesses testified to what they considered the market value of his land. At one time appellee was asked what was the value of his land, and the court told him to confine his answer to the market value. If counsel for appellant thought that the jury did not so understand the instruction he should have made a specific objection to it. Again it is insisted by counsel for appellant that the court erred in not permitting appellee to state what was the value of the land at the time he purchased it. We do not think there was any error in this. Appellee purchased the land several years before the ditch was constructed, and the testimony shows that the value of lands in that vicinity had risen considerably since the date of his purchase. Besides, appellee might have purchased the land at less than its market value. Then, too, the deed to appellee was introduced in evidence and it recited a consideration of fifty dollars, which was not denied to be the true consideration.

Finally, it is insisted that the damages are excessive. It must be conceded that the jury was extremely liberal in awarding damages to appellee, but when we consider the market value of the land before and after the construction of the ditch, as testified to by the witnesses for appellee, we can not say that there was no testimony to warrant the verdict of the jury. .

The judgment will be affirmed: