The Constitution provides that: “Private property shall not be taken, appropriated or damaged for public use without just compensation therefor.” Const. 1874, art. 2, § 22. In Hot Springs R. Co. v. Williamson, 45 Ark. 429, it was contended that “where the fee of the streets is in the city, and it grants a right of way to a railroad company to construct its road along a street, pursuant to an act of the Legislature authorizing such use of the street, arid the track is laid in a proper and skillful manner,” the railroad company is not liable to abutting lot owners for consequential damages. In disposing of that question this court held (quoting syllabus) : “The owner of premises abutting upon a street in a city or town may recover from a railroad company the damages resulting to his premises by the construction of its roadbed or other structures on its right of way along the street in such manner as to obstruct access to the premises, though he have no interest in the fee of the street, and no .part of his premises be taken and the road or other structure be skillfully built.” That case rules this, and the learned and exhaustive opinion of Chief Justice Cockrill has left nothing more for us to say upon the question. But counsel for appellant, while conceding that the doctrine of that case “is perfectly sound,” yet says: “It can have no application to the facts in this case,” for, says he, “in the case at bar the railway company is not occupying a public highway. The public highway yet remains intact. In the case at bar-the plaintiff owns no fee in any part of the ground occupied by the dump of the railway, nor has he any property interest whatever in any portion of the company’s right of way; and in the case at bar it must be clearly understood, and all the time remembered, that the railway company not only had acquired its right of way, but had constructed its line of road upon that right of way twenty-five years before the plaintiff had acquired title to the property for which he now seeks to recover damages.”
A glance at the facts of the two cases will show that in the essential particulars upon which the doctrine in the Williamson case was announced there is no difference between that case and this. Reamed counsel for appellant mistakes the facts and the law when he says that in the Williamson case Williamson was the owner in fee of the soil to the center of the street upon which he owned lots abutting. The Act of Congress of March 3, 1877, only gave to the claimants of the lands of the United States government at Hot Springs a pre-emption right to the land occupied by them. The fee in the streets never passed to individual claimants. It was expressly reserved in the Government for the use of the public at Hot Springs. See Williamspn case, supra.
The decision in Hot Springs R. Co. v. Williamson, supra, upon the question now under consideration was bottomed upon the fact that Williamson was not the owner of the fee in the soil when the railroad company secured its right of way and built its road over it. Judge Cockrir'i, says: “Now, the fundamental law is, 'private property shall not be taken, appropriated or damaged for public use without just compensation.’ Under this enlarged provision, our inquiry is no longer limited to the question, has private property been taken for public use? and it is useless to recur to cases which are confined to the -interpretation of a clause containing that limitation only. A provision similar to that in our Constitution is found in the constitutions of Illinois, Colorado, Georgia, Nebraska, California, West Virginia and Pennsylvania, and in each of these States it has been held by the courts of last resort that this addition to the old provision against taking private property without compensation was intended to' afford redress where none could be had before;” citing many cases. And continuing: “An examination of the cases will show’ that it may now be taken as settled that where this provision prevails it is no longer necessary that there should be a physical invasion or spoliation of one’s land in order to give a right of recovery.” Had Williamson been the owner of the fee in the land taken, this language would have been inappropriate. Moreover, the cases cited in the opinion show clearly that the ruling was based upon the idea that Williamson was not the owner of the land taken, yet, as he was the owner, at the time the railroad was built, of land that had been injured by its construction, he was allowed to recover. Some of the strongest cases cited were those where the land damaged was not even situated on the street or highway taken for railroad purposes.
Counsel for appellant invokes the well-settled doctrine “that where a railroad company, having the power of eminent domain,has entered into actual possession of land necessary for its cor-, porate purposes, whether with or without the consent of the owner of such land, a subsequent vendee of the latter takes the land subject to the burden of the railroad; and the right of payment from the railroad company if it entered by virtue of an agreement to pay, or to damages if the entry was unauthorized, belongs to the owner at the time the railroad company took possession;” and he cites Roberts v. Railroad Co., 158 U. S. 1; McFadden v. Johnson, 72 Penn. St. 335; Schuylkill & S. Navigation Co. v. Decker, 2 Watts, 343; 2 Wood, Railroads, 994; McLendon v. Atlanta & W. P. R. Co., 54 Ga. 293; Allen v. Railroad Co., 107 Ga. 838; Toledo Ry. Co. v. Morgan, 72 Ill 155; Ill. Central R. Co. v. Allen, 39 Ill. 205; Indianapolis, Bloomington & Western Ry. Co. v. McLaughlin, 77 Ill. 275.
We have examined these authorities, and find that the doctrine is applied only in cases where there has been a taking of the property — where the corpus of the property was invaded and suffered some physical injury.
It is a well-established rule of law that the owner of land taken for railroad purposes is entitled, before or at the time of the taking, to compensation for all damages', present and prospective, which he sustains by reason of. the construction of the railroad. Const. art. 2, § 22; Kirby’s Digest, § 2899. Such damages include the value of that part of the land which is taken, as well as the damages consequent upon such taking to the residue. The doctrine invoked by appellant has its rationale in the presumption that, in the absence of proof to the contrary, the owner who is entitled to such compensation received same before or at the time his land was charged with the servitude; that this was considered and settled when the owner conveyed the land to the railroad or when the railroad acquired its title by condemnation; or that the' . owner was barred from claiming such compensation where the railroad had acquired title by prescription. 23 Am. & Eng. Enc. Law, 714.
For obvious reasons the doctrine urged could not apply to one whose property had never been taken, and who was not therefore entitled to set up a claim for damages as one whose property had been taken. By limiting the right to recover for damages to those whose property had been taken under the old rule prior to the adoption of the Constitution of 1874, great injustice and inequality often arose. As is shown by Judge Cockrill in Hot Springs R. Co. v. Williamson, supra, it was to obviate this that the constitutional provision was broadened so as to give compensation to the one whose property was damaged (although not taken) for public use, as well as to the one whose property was taken. It is under this provision, as construed by this court in Hot Springs R. Co. v. Williamson, supra, that appellee seeks and is entitled to recover. Under this provision the cause of action accrues when the damage is done, and accrues to the one who is the owner of the land at the time of the construction which causes the injury or damage.
As shown in one of the citations from Hot Springs R. Co. v. Williamson, to warrant a recovery in all cases where the property is damaged, but not taken, by the obstruction in a street, it must appear that there is some “physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.” Rigney v. Chicago, 102 Ill. 64.
This doctrine was recognized in Little Rock & H. S. W. Rd. Co. v. Newman, 73 Ark. 1, but in that case the complainant and appellant could not recover for the reason that he had not sustained any special damage. In this case the facts show that appellee sustained damage that was special and peculiar to him, not shared in by the general public.
Opinion delivered July 9, 1906. Oscar L. Miles, for appellant. 1. The Williamson case differs essentially from this. Williamson owned a right of passage along, and across the street which was interrupted and destroyed by the construction of the road placed there after he bought his property. Greer bought, his property after the railway company had acquired its right of way, and had constructed its line of road; and when it modified its line of road, it remained on its right of way, and did not .invade the street in front of Greer’s house. In the Williamson case there was a new taking of land from which damage resulted ; in the Greer case there was none. 2. When Greer bought, and built his house upon the land, he was charged with notice (1) that a railroad was in operation on the right of way which it owned immediately in front of his premises; and (2) that a statute existed which authorized the railway company to change either its alignment or its grade line whenever, in the judgment of its board of directors, it saw fit to do so. 3. In the Williamson case there was a physical disturbance of a right, whereby he “sustained a special damage with respect to his property in excess of that sustained by the public generally.” In Greer’s case, the street and sidewalk remain intact. There was no obstruction placed in the street — no physical disturbance of a right. Reid & Strait, for appellee.The building of the embankment along the street ex adverso appellee’s premises produced special injury to him, as shown by the proof, which gave him a cause of action. Hot Springs Rd. Co. v. Williamson, supra; Abendroth v. Manhattan R. Co., 11 L. R. A. 634, notes.
Affirm.