20 MISSOURI PACIFIC RAILROAD CO., THOMPSON, [206 TRUSTEE, v. E VANS. MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE v. EVANS. 4-7102 173 S. W. 2d 1019 Opinion delivered June 21, 1943. i. RAILROADS—DAMAG E S FROM OVERFLOW—CONTRACTS.—Where appellants constructed ditches that caused damage to appellee's lands for which .appellee recovered judgment and appellants contracted to build dams across the ditches to prevent overflows in consideration of appellee's agreement to release them from all present and future damages, an action based on appellants' breach of its contract to constfuct the dams was not barred by the judgment in the former action. 2. CONTRACTS—REASONABLE TIME FOR PERFORMANCE. — W hile the contract made by the parties provided for reasonable time in which to build the dams across the ditches, it was contemplated that since the dams could be constructed within a few days they should be built before the next crop season. 3. RAILROADS—DAMAGES—JURY QUESTION. — The questions whether the existence of a state of war and the fact that when the dams were constructed they were washed away by high water were suf-
ARK.] " MISSOURI PACIFIC RAILROAD CO.; THOMPSON, 21 TRUSTEE, V. EVANS. ficient to excuse appellants were properly submitted to the jury for its determination. 4. RAILROADS-DAMAGES FROM OVERFLOW.-By entering into the contract to construct dams across the ditches to prevent the further overflow of appellee's lands, appellants admitted that the ditches caused the damage and that unless they were dammed up they would cause further damage. Appeal from Ouachita Circuit Court; J. Bruce Streett, Judge ; affirmed. Henry Donliam and E. W. Moorhead, for appellant. L. B. Smead and Lawrence E. Wilson, for appellee. MeHANEv, J. Appellees recovered judgments against appellant for damages to land and crops by reason of overflows from the Little Missouri river, caused by cutting . ditches through the high banks of the river, along both sides of the railroad, as follows : J. E. Evans $650 to land J. W. Hesterly 400 " " Allen Green 400 " " and $400 to croPs • Mrs. H; C. Lochlar 150 " • H. Peterson 150 " " Garland Nichols 42 for rent It is undisputed that when the river gets about two-thirds full, the water from the river runs out through appellant's ditches until it reaches • a slough which it follows through the low bottom land, over which it spreads out, and finally back into the river beyond the lands of appellees, and, in doing so, overflows and damages their lands and crops. Similar suits were brought against appellant by these smile appellees prior to these actions. In that case, „appellee Evans recovered a judgment against appellant for $700. Thereafter, on November 29, 1941, appellant pud appellees, including Evans, entered into a written settlement agreement whereby Evans.was paid the amount of his judgment and all other claimants were paid certain amounts in satisfaction of all present and future damages because of said ditches, and in which agreement appellant bound itself as follows : ". . . and it is further agreed that said trustee will build a dam
22 MISSOURI PACIFIC RAILROAD CO., THOMPSON; [206 TRUSTEE, V. EVANS. in each ditch on each side of the railroad track on the south bank of the Little Missouri River in Ouachita county, Arkansas, so as to prevent water from running out of the river alongside of the railroad track, said dams to be built within a reasonable length of time, and the railroad engineers are to be the sole judge of the type and kind and the way the danis should be built." It was further provided that, in consideration of the payment "and-the building of said dams," the claimants did thereby release appellant from all claims "which be has had in the past, now has or may hereafter have" because of water flowing in or out of the river through said ditches. To reverse these judgments appellant makes several contentiofis. As to the suit of appellee Evans, appellant pleaded the former judgment as res judicata in bar of the present action. As stated above, the former suit of Evans went to judgment, the judgment was paid and file record satisfied. It was stipulated that the parties were the same, the same action to recover damage to the same land, and caused by overflow from the same ditches. Appellant cites and relies on the recent case of Mo. Pac. Rd. Co. v. McGuire, 205 : Ark. 658, 169 S. W. 2d 872, but we thhik that case not controlling here, because -of the Contract here made to build the dams in the ditches to prevent a recurrence of the overflows through that source. Tbis agreement was made with Evans just as it was with the other appellees, and we think his present cause Of action was based on the alleged breach of the recited agreement to build the dams. It is next argued that appellant made a diligent effort to buiid the dams within a reasonable length of time and that it was prevented from so doing first by the acts of God, in that an unusual number of floods in the river interfered; second, by unusual World War conditions ; . and third, that the dams were built and were washed hway. It is true that the testimony shows an unusual number of high water conditions existing in the river in the winter, spring and summer of 1942. Even so, there is
ARK.] MISSOURI PACIFIC RAILROAD CO., THOMPSON, 93 TRUSTEE,.2 ). . EVANS. substantial evidence that the dams could have been built between rises, in time to permit appellees who are farmers to prepare and plant their land in crops in the spring. It appears to us that the contract, while providing for a reasonable time, contemplate.d that the dams should be built before the next crop season because each in terms released appellant for futtire liability for damages, which we .assume they would not have done had they known the dams would not be promptly built. The construction of these dams was -a small job. The ditches were narrow and not very deep, one 20 to 30 ft. wide, 5 ft. -deep and the other 12 to 15 ft. wide and 10 ft. deep —just the ordinary ditches along side tbe tracks—and could have been completed in a few days. It is also said that the declaration of war shortly after December 7, 1941, created an unusual condition by placing upon appellant greatly increased demands for service, sufficient to excuse it. Also that it attempted to build the dams, but was prevented by high water and that it actually built them only to have them washed away by the high water. All these matters were submitted to the jury in instructions not here complained of, and we think the . question whether appellant was diligent in tbe premises was one for the jury. We cannot say as a matter of law that appellant acted in a reasonable time. What is a rea-. sonable time, said Judge WOOD ill Merril v. Sypert, 65 Ark. 51, 44 S. W. 462, "will depend upon the facts and circumstances surrounding the parties and -influencing their conduat in entering upon the contract, as well' as the nature and extent of the contract itself." By entering into this contract and 'settling the claims of numerous landOwners, appellant admitted that said ditches caused damage to appellees, and, unless damned up, would continue to cause them damage. The contract released appellant for future damage, but required it to - construct the dams within a reasonable time, which would be within .such time as would prevent future damage to them. • Two other arguments are- made by appellant, that the verdicts were based on speculation and conjecture,
24 [206 and that they are excessive. We cannot agree with either contention and think it would serve no useful purpose to discuss them. The judgments are accordingly affirmed.
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.