1. Railroads : Right of way— who may con-
The statute regulating the proceedings for condemnation of right of way for railroads makes no provision for the initiation of proceedings by the land-owner. Mans. Rev. Stat., Sec. 3438, et seq. The company alone can put the statutory remedy into operation, and if they neglect to do so, one who is injured by the construction of the road has his remedy by action against the company for the injury sustained. C. & F. R’y v. Turner, 31 Ark., 494; C. & F. R’y v. Trout, 32 Ib., 17; L. R. & F. S. R’y v. Dyer, 33 Ib., 360; Whitehead v. A. C. R’y, 28 Ib., 461; Mills. Em. Dom., Sec. 88.
2. Same:— Damages to life tenant and remainder-man.
A tenant for life and remainder-man are each entitled to recover compensation for the injury he sustains. L. R. & Ft. T. R'y v. Dyer, supra. The remainder-man can recover only for such damages as affect his expectant estate. The acts of which he can complain must be of such a permanent nature as to be necessarily prejudicial to the reversion. In general this damage is the amount the estate is thereby diminished in value.
In this case the life tenant and owners of the inheritance . . . joined m an action against the railroad company to recover damages for constructing its road across their land. The company undertook to make defense against all the plaintiffs upon the ground that the life tenant had conveyed to them by deed the right of way. The court sustained a demurrer to that paragraph of the answer alleging this state of facts, and the action of the court is pressed here as error.
3. practice : Error in overruimg fading,
It does not appear, however, that the appellant was prejudiced by the order sustaining the demurrer. The company was permitted to show the release to them, of the right of way, on the trial, and the court clearly instructed the jury that no damages could be recovered of the company for injury r/to the life estate, and gave directions for eliminating that interest from the case altogether. This is the utmost advantage the company could have taken under the answer. The life tenant does not complain of this, and we take it her claim was abandoned on the coming in of the answer.
It is not contended here that the grant of the right of way by the life tenant carried the interest of the remainder-man, and the contention would be useless. The appellant, the defendant below, made no objection to the complaint on any score. The technical forms of actions no longer obtain. The complaint alleged a permanent injury to the land, and the proof made by both parties showed that this was true, with all the. particularity that could be required under any state of pleading. The complaint must be taken now as though amended to conform to the proof, and the appellant’s objection to it, if tenable at all, comes too late.
4. rIGHt of byllfb t?naít.°f
5. Damages from overflowingiand by construction of r°ad.
The appellant reserved no exceptions upon the trial to the . . instructions or rulings of the court, except as to the admission ° * of testimony of a witness for the appellees who testified that several acres of the land were worth less by reason of the railroad embankment throwing the surface water on it so that it could not be cultivated. This, in the witness’ opinion depreciated the value of the inheritance, and was a proper matter for the jury’s consideration, and by the decisions of this court one of the elements of damages in such cases. Springfield & Memphis R'y, v. Henry, 44 Ark., 360; Same v. Rhea, Ib., 258; St. L., I. M. & S. R'y v. Morris, 35 Ib., 622.
A new trial was not claimed because of the award of excessive damages.
Affirmed.