1. A railroad company has no right to fill up a ditch made for the purpose of drainage over lands afterwards acquired by it for a right of way, when the person owning the Soil drained made said ditch over his own land, or had acquired the right of drainage thereby as an easement. It has no right to obstruct such drainage, but if it has occasion to cross the drain by an embankment or raised way, it is its duty to place a culvert or covered drain under it to carry off the water as before, and for a neglect to perform this duty is liable for the damages caused by the failure. Proprietors of Locks and Canals v. Nashua & L. R. Co., 10 Cush. 385.
2. The next material question for consideration is, in what time shall an action for the damages occasioned by such an obstruction be brought? In St. L., I. M. & S. Railway v. Biggs, 52 Ark. 240, it is said: “Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance.” St. L., I. M. & S. Railway v. Morris, 35 Ark. 622, and Little Rock & Ft. S. Railway v. Chapman, 39 Ark. 463, are cited to sustain the rule.
In Railway v. Morris, supra, “a solid roadbed embankment was built across a wet weather stream which drained an area of several square miles.” The railway company left an open trestle at a considerable distance from the natural crossing, and endeavored, without success, to drain off the water through that. The court held that the evidence justified the jury in finding that damage had resulted from the failure to use due care and skill in constructing the roadbed, and that the action for the recovery of such damage should be brought within three years from the time the embankment was completed.
Damage for obstruction of drain. limitation of action for obstructing-drain.In Railway v. Chapman, suprra, the appellant “erected and maintained an embankment on its right of way, across a natural drain or swale, through which the accumulation of waters from the surrounding country, in their natural flow, had previously passed off from the land of appellee and into the Arkansas river. Appellant had, by reason of a failure to place sufficient culverts or drain pipes in said embankment and roadbed, obstructed the usual flow of water across the grounds occupied by the defendant, and had dammed up the water, and caused it to flow back and accumulate on the appellee’s land.” This court held that an action for the damages caused by the embankment should be brought within three years after its completion.
So, in this case, the obstruction of the ditch was permanent; that is, it will continue without change from any cause except human labor. The effect of it was to restore the land drained to the condition in which it was before the ditch was dug. Its present and future effect upon the land could be ascertained with reasonable certainty. The damage was original, and susceptible of immediate estimation. “No lapse of time was necessary to develop it.” It was the difference between the value of the land as it would have been with the ditch open, and the value of it with the ditch closed. St. L., I. M. & S. Railway v. Morris, 35 Ark. 622; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 214.
As the law does not favor the multiplicity of suits, and all damages which will be sustained as the necessary result of the filling of the ditch in question, and are recoverable, could have been estimated at the time of such obstruction, from the effect of it upon the value of the land, only one action should be brought therefor, and that within three years after the ditch was closed up.
The rule for the measure of damages recoverable in an action at law for the destruction of crops is given in Railway Co. v. Yarborough, 56 Ark. 613. It is unnecessary to repeat it here.
Reversed and remanded, with instructions to overrule the demurrer to the second paragraph of appellant’s answer, and to grant a new trial.