Sidebilder
PDF
ePub

(2) In arriving at the damage and the amount thereof to property in this class of cases, some just limitation or rule must be enunciated. We think the rule announced in Czarnecki v. Bolen-Darnell Coal Compрапу, 91 Ark. 58, should be applied. The substance of the rule is that the property owner must suffer a direct, substantial injury peculiar to himself and not suffered by the general public. In the instant case, the injuries were direct, substantial and peculiarly affected the lands in question.

(3) The evidence in this case tends to show that the noxious odors, escaping from the tank and stream into which the effluent passed, were caused by defective plans. C. B. Bailey, an engineer, testified that two dosage chambers should have been installed when the tank was constructed; that had some artificial chemical action been installed it would have entirely eliminated the odors.

The evidence further shows that the system was constructed upon the whole in accordance with the plans. In the case of the City of Eldorado v. Scruggs, supra, it was held that the sewer district was responsible for damages resulting to the property owner on account of construction of the system in accordance with the plans.

It is unnecessary to discuss the instructions, given and refused by the court, more than to say that the instructions given were in accord with the law announced in this opinion and limited the recovery to damages incident to the defective construction; and that the instructions refused were based on the theory that damage resulting to the property owner on account of noxious odors was not a damage within the meaning of section 22, article 2 of the Constitution of Arkansas.

(4) It is further insisted that the injury resulting from defective construction is not a permanent injury. The placing of the tank and the general manner of construction of this system was in keeping with the plans, and so far as this record disclosed, is a permanent structure. There is no evidence tending to show that the sewer district intends to, or will, remodel the system. Damage must necessarily result to this property by reason of the construction of the septic tank in accordance with defective plans, and by reason of the close proximity of the property to the tank. The decrease of the market value of the land on this account is not speculative and conjectural, but can be reasonably ascertained and definitely estimated. The facts in the case bring it well within the test laid down in the case of C. R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, and the cases cited therein.

The judgment is affirmed.

KOCHTITZKY v. BOND.

Opinion delivered March 26, 1917.

NEGLIGENCE-DRAINAGE DITCH CONTRACTOR-BREAKING OF DAMLIABILITY.-A contractor, constructing a drainage ditch will be liable for damages occasioned by the breaking of a dam erected by him, for his own convenience to facilitate the passage of his dredge boat.

Appeal from Poinsett Circuit Court, First Division; W. J. Driver, Judge; affirmed.

S. L. Gladish, for appellant.

1. Appellant was not liable (1) because he was an independent contractor on public work and complied with every requirement of the law in performing his contract and (2) because appellee did not make any effort to prevent damages to his property. The dam was necessary for the completion of his work.

The instructions given were not the law; besides they were conflicting. 122 Ark. 272.

The dam was necessary and was not negligently constructed. 110 Ark. 416; 118 Id. 1; 170 S. W. 1012.

2. It was an extraordinary rainfall not to be anticipated. 64 S. W. 149; 6 L. R. A. (N. S.) 252;6 N. W. 789; 67 Ind. 236. The dam did not increase he flow of water. Gould on Waters (3 ed.), 412-14.

3. It was the duty of appellee to take the proper precautions to save his logs. 8 R. C. L. 442-6; 102 Ark. 246; 105 U. S. 224; 67 Ark. 371; Sutherland on Damages, 90; 44 Mo. 303; 79 Ark. 484.

Lamb, Turney & Sloan, for appellee.

1. Appellant's requests were properly refused. The dam was not necessary for the construction of public work, but if so it was negligently constructed and appellant was liable. The river was a navigable stream. 178 S. W. 312; 39 Ark. 403. But if non-navigable, the right to erect dams can only be exercised in the manner prescribed by§§ 2966-2991 of Kirby's Digest.

The dam was an unlawful obstruction. 95 Ark. 298; 93 Id. 46; 99 Id. 132; 110 Id. 416. It was not essential to improvement. 118 Ark. 1; 50 S. W. 1049; 70 S. E. 126; 29 Сус. 1198-9.

The rain was not unprecedented. 95 Ark. 297; 61 Ark. 381. The dam was at least a contributing cause to the injury. 95 Ark. 297; 89 Id. 581; 92 Id. 573; 101 N. Y. 736; 182 S. W. 1161; 89 Ark. 590.

The doctrine of contributory negligence does not apply. 12 Cal. 555; 80 Ga. 291; 4 S. E. 885; 122 Mass. 419; 123 Id. 254; 47 Pac. 194; 80 Ind. 379.

The jury were properly instructed and the evidence sustains the verdict.

MCCULLOCH, C. J. This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by the breaking of a dam constructed by appellant across Tyronza River. Appellee was engaged in getting out saw logs and floating them down Tyronza River to market, and he placed a large quantity of logs on the bank of Tyronza River preparatory to loading them in the river when the stage of water should become favorable for rafting and floating. The logs were placed at the dumping ground in the month of October, 1914, and remained there until they were washed away by a flood of high water on January 31, 1915. Appellant and another ditch contractor constructed a dam across the river a short distance above the dumping ground occupied by appellee in piling his logs, and an unusually heavy rain occurring on January 30 and 31 caused the dam to break. It is alleged in the complaint that when the dam broke the accumulated water, by reason of the obstruction and of the excessive rainfall, caused an unusual rush of water down the river which washed the logs away from the high bank. Many of the logs were lost entirely and others recovered at considerable expense. The jury assessed damages in favor of appellee in the sum of $425.56, and it is not contended that the amount awarded is excessive. The trial court in its charge to the jury stated that it was undisputed that appellant participated in the construction and maintenance of the dam, and that the only issue to be determined was whether or not the loss complained of by appellee was caused by the maintenance and breaking of the dam. It is contended that the court was wrong in this instruction and that further issues should have been submitted to the jury to determine whether or not the construction and maintenance of the dam constituted negligence and whether or not appellant, under the circumstances, was responsible for the injury. Appellant defended on the ground that the construction and maintenance of the dam was an essential part of the construction of a certain improvement undertaken by him under his contract with the drainage district, and that the drainage district, rather than the contractor, was responsible for any injury which resulted.

Grassy Lake and Tyronza Drainage District No. 9, Mississippi county, was a district formed for the purpose of constructing a system of ditches, and appellant entered into a contract with the district to dig two of the ditches embraced in the system, one being designated as Ditch No. 1 and the other as Ditch No. 40. Ditch No. 40 emptied into Tyronza River on the east side a short distance above the place where the dam was constructed. Ditch No. 1 began at the foot of Spear Lake about two miles west of Tyronza River, and thence ran southwesterly and emptied into the St. Francis river. The ditches were constructed by means of a large dredging boat, and when appellant finished the construction of Ditch No. 40 it was necessary to find means to transport the boat to the point where Ditch No. 1 was to begin at the foot of Spear Lake. The head of Spear Lake is about one-half mile from Tyronza River and there is a small bayou which connects the two bodies of water. The only way to get the boat from Tyronza River over to the beginning of Ditch No. 1 was to raise the water in Tyronza River so that there would be enough water for the boat to dredge its way through the bayou into Spear Lake and thence through Spear Lake to the beginning point of Ditch No. 1. Theengineer of the drainage district procured from the owners of the land through which the bayou ran a right of way for the use of the bayou in getting the dredge boat through, and appellant used the way under that license. The dam in question was built pursuant to the aforementioned plan for getting the boat over to the place where the work on Ditch No.1 was to be commenced. The contention of appellant is that the state of facts related above brings the case within the rule that a contractor for the construction of a public improvement under contract with an improvement district or other public agency is only liable for negligence or unskillfulness in the performance of his work, and is not responsible for injury inflicted by acts which constitute "an essential part of constructing the work contemplated by the organization of the district." We do not think that the facts of the case bring it within that rule, but on the other hand that the construction and maintenance of the dam was solely for the convenience of the contractor in transporting his equipment. If injury resulted from the damming of the stream the contractor alone is responsible. In Foohey Dredging Co. v. Mabin, 118 Ark. 1, we said: "An independent contractor is not liable except for negligence or unskillfulness in the

« ForrigeFortsett »