658 MISSOU RI PACIFIC RAILROA D CO., T HUM PSON 2 [205
TRUSTEE, V. MCGUIRE. MISSOURI PACIFIC RAILROAD COM PAN Y, T OMPSON, • T RUSTEE, V. MOGUIRE. 4-7037 . 169 S. W. 2d 872 Opinion . delivered April .5, 1943. 1. DAMAGES—RECURRENT DAMAGES.—Where damages from the construction of an embankment are recurrent there may be a recovery after each infliction of damages; but if the damages from the . construction are original there can be only one recovery. 2. DAMAGES—ORIGINAL DAMAGES.—If the damages from the construction of an embankment are certain and their nature and ex-- tent may be reasonably ascertained and estimated at the time of such construction, the damage is original, and there can be but a single recovery. 3. DAMAGES.—Where appellant by the construction of an embankment caused the water to overflow the land of M and M sued and recovered judgment for the damages sustained', there was no cause of action in favor of M's tenant to whom he subsequently rented the land for damages to his crops. 4. DAMAGES—PERMANENT DAMAGES.—When M recovered the damages to his farm, he recovered the original . and permanent damages. 5. JUDGMENTS—RES JUDICATA.—Where M recovered damages to his land caused by an embankment constructed by appellant, the judgment is res judicata of the question in an action by M's tenant to whom the land was subsequently rented for damages to his crops. 6. JuDGmENTs—BINDING EFFECT.—The recovery of a judgment is binding on the appellant and all who are in privity with him, and this includes all parties claiming under the same title. Appeal from Lonoke Circuit Court ; W. J. Waggoner, Judge ; reversed. Thomas B. Pryor and Harvey G. Combs, for appellant. E. H. Bostic and Phillip McNemer, for appellee.
AMC] MISSOURI .PACIFIC RAILROAD Co., T FrOMPSON, 659 TRUSTEE, V. MCGUIRE. MCFADDIN, J. This case involves the question .of damages caused by the construction of a ditch. Appellant was defendant in the lower court, and, from a judgment of $300, has prosecuted this appeal. Facts. In October, 1938, appellant constructed a ditch along the right of way in order to drain surface water. This ditch was adjacent to the eighty acres of land owned by W. H. Martin; and in October, 1940, Martin sued appellant for damages to the land resulting from the construction of the ditch. The complaint in that case alleged that prior to tbe construction of the ditch the lands were in a high state of cultivation and adapted to the growing of cotton and other crops, and free of overflow ; but since the construction of the ditch the lands had become "practically useless on account of the overflow water whieli said ditch pours on the same in enormous quantities after each hard rain, thereby making said land practically useless ; . . . that the overflow water has washed deep gullies in the land and has washed the soil from the land to such an extent that the land is useless.' Martin sought damages in the amount of $1,000. On April 16, 1941, the court sitting as a jury found for the plaintiff and assessed his damages at the sum of $150 "for damage to the following described land as set out in the complaint . ." Judgment was rendered for Martin for $150 apd interest and costs ; and the judgment was paid and satisfied of record. While the above-mentioned cause by Martin was pending against appellant, Martin rented the same eighty acres of land to tbe appellee McGuire. He planted the land and bis crops were destroyed in the Spring of 1941 by reason of the water from the said ditch overflowing the eighty . acres of land. McGuire then filed the present suit against the appellant for $1,400 as damages to his crops destroyed in 1941. Appellant pleaded the former suit and recovery by Martin as res judicata. The present cause was tried on a stipulation; and there was no evidence introduced tending to show that any change of any
• 660 MISSOURI PACIFIC RAILROAD CO., THOMPSON, [205
TRUSTEE, V. MCGUIRE. kind had occurred in the ditch or the railroad right-of-way from the. original construction in 1938. There are two questions : 1. The nature of the damages. 2. The plea of res judicata. 1. The Nature of the Damages The law of this state is well settled that: If the damages from the construction are recurrent, then there may be a recovery after each infliction of damages ; but if the damages from the construction are original, then there can only be one recovery. The early decisions are listed in the case of C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E, 962, where, regarding limitations, the rule is stated: "If it is of such a construction as drat damage must neceSsarily reSult, and the certainty, nature and the extent of this damage may be reasonably ascertained and estimated at the time of its construction; then the damage is original and there can he but a single recovery and the statute of limitation against such cause of action is set in motion on the completion of the obstruction. If it is known merely that damage is probable, or, that even though some damage is certain, the nature and the extent of that daMage cannot be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitation is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries." While the statute of limitations is not involved. in the case at bar, still the above-quoted rule is fully applicable when applied to a case like the one here, involving the question of recovery in one action or in a succession of actions. It is clear that when Martin filed his suit in 1940 the nature and extent of his damages were known with reasonable certainty ; otherwise be would have had no case to file. So under the anthority of the above-quoted case we hold that the damages weis.e original and that the original recovery by Martin is the only one for which the appellant is liable. Board of Directors v. Bar-ton, 92 Ark. 406, 123 S. W. 382, 25 L. R. A., N. S., 645, 135 Am. St. Rep. 191 ; Louisville, etc., Ry. Co. v. Jackson, 123
ARK.] MISSOURI PACIFIC RAILROAD CO., THOMPSON, 661
TRUSTEE,. V. MCGUIRE. Ark. 1, 184 S. W. 450, Ann. Cas: 1918A, 604 ; St. Louis, etc., Ry. Co. v. Miller, 107 Ark. 276, 154 S. W. 956.. Appellee urges that the case of C., R. J. & P. Ry. Co. v. McCutchen,. 80 Ark. 235, 96 S. W. 1054, applieS here; but in the_ McCutchen case the overflow was caused by the diteh being . filled up, and it was thus a recurring damage.. Here there was no proof of any kind that there was any change in the condition of the ditch from . its original construction .to and including the trial of the .present case; so the McCutchen case is not in point. Appellee cites as applicable to the case at bar the cases of St. Louis, etc., Ry. Co. v. Biggs, 52 Ark. 240, .12 S. W. 331, G L. R. A.. 804, 20 Am. St. Rep. 174 ; Railway Co. v. Yarborough, 56 Ark. 612, 20 S, W. 515 ; St. Louis, etc:, Ry. .Co. v. Stephens, 72 Ark. 127, 78 S. W. 766 ; Daniels v. Batesville, 189 Ark. 1127, 76 S. W. 2d 309; Baldwin v. Neal., 190- Ark. 673, 80 S. W. 2d 648; St. Louis-San Fran-cisco Railway Co. v. Spradley,.199 Ark. 174, 133 S. W. 2d 5. Each of the cases turns on whether or not at the time of the construction (ditch, culvert, levee, or other similar work) it was then uncertain whether the construction would injure the land. Here, as previously pointed out, the record shows affirmatively that tbe landowner (Martin) recognized the certainty of the damages and filed suit and recovered. The measure of damages was the difference between tbe value of the land before the ditch was constructed and the value of the land after the ditch• was completed, and the allegations in tbe complaint were designed to 'show that measure of damage g. St. Louis, etc.,. Ry. Co. v. Miller, 1.07 Ark. 276, 154 S. W. 956. When Martin recovered the damages in 1940, he recovered the original and permanent damages. 2. Res Judicata Appellee has . pleaded the Martin judgment as res judicata against the present suit; and we find that this plea is well founded. As stated in 30 Am. Jur. 908: "Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts iu issue,
662 MIssoum PACIFIC RAILROAD CO., THOMPSON, [205 TRUSTEE, V. MCGUIRE. as to the parties and their privies, in all other actions in. the same or any other judicial tribunal of concurrent jurisdiction." And in 30 Am. Jur. 957, in discussi]Ig who are privies within the rule of res judicata, it is stated : "In general, it may be said that such privity involves a person so identified in interest with another that lie represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title." .See Meyers v. L e ichenbaum, 202 Ark. 438, 150 S. W. 2d 958, and cases and a.uthorities tbere cited. Appellee was the tenant of Martin, so certainly he was Martin's privy. In the case of C., B. I. ce P. By. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 1.27, L. R. A. 1916E, 962, the tenant was held to be barred when his landlord was barred. This court said : "If the owner of the land was barred, the appellees as tenants were. This feature of the case is very similar to the case of Board of Directors, St. Francis Levee District, v. Barton, 92 A.rk. 406, 123 S. W. 382, 25 L. R. A., N. S., 645, 135 Am. St. Rep. 191. In that case Barton was a tenant in possession of tbe land which was overflowed, under a lease for a term of years, including the years 1906 and 1907, when the . crops were destroyed by the impounded water. The levee which impounded the water and caused the overflow was constructed in 1899 and in holding that the cause of action was barred, the court there said : 'It would perhaps be more accurate, instead of saying that plaintiff 's cause of . action was barred, to say that the injury done by the con .- • struction of the levee in 1899 was a permanent injury to the land, and not to the crops subsequently planted and grown thereon ; and, as the plaintiffs did not own the land, and had no interest therein at the time, the injury was inflicted, no cause of action ever arose in their favor '." The above case is ruling here ; and it follows that the trial court committed error in rendering judgment for appellee. The judgment is reversed and the cause is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.