ON REHEARING.
McCulloch, J.The principle is made clear in the original opinion that where a railroad corporation lawfully acquires a right of way over land, either by grant, prescription or condemnation, such acquisition covers all damages, present and prospective, resulting to the owner whose land is invaded. This upon the theory that full compensation is allowed at the time, and can be recovered only once. This principle applies, however, only to one whose lands have been invaded, and to the extent only of such invasion. One whose land has not been previously taken, under voluntary grant, prescription or condemnation, may recover compensation for damages whenever the same accrues; and where there is a new or additional taking, damages therefor may be recovered. According to the agreed statement of facts in the case, the railroad company never acquired a right of way by grant or condemnation. Its acquisition by prescription was, therefore, only to the extent of the actual taking, which was the land.covered by its roadbed, and no more. St. Louis S. W. Ry. Co. v. Davis, 75 Ark. 283. It is said in the agreed statement of facts that the company claimed a right of way 49L2 feet on each side of the center of the track, but it is not shown that the claim was asserted in a manner sufficient to give- it the right by préscription. There was no actual occupancy of the ground, and no map and profile of the route was ever filed.
The company, in recently reconstructing its roadbed, has encroached upon the public street in front of plaintiff’s property ’ by building a dump 11 feet high and 26 feet wide on that side from the center of the track, thus narrowing the street to a width of 18 feet. Damages are now sought for this encroachment. The plaintiff, by his conveyance from Shelby, took title to the center of the street in'front of his lot, subject to thé public easement. Dickinson v. Arkansas City Improvement Co., post, p. 570. If is not important to consider whether or not the present encroachment by the company fell within the limits, of-. that part of the street to which plaintiff held the title. In either event he is entitled to all damages incurred by reason of •'the encroachment, - since-he' obtained title-to- the-abutting- lot. Whether he owns the fee to the street or not, he can, as the -owner of the abutting lot, recovér compensation for the damages caused by obstructing^ the street. Hot Springs Rd. Co. v. Williamson, 45 Ark. 429.
It is not entirely clear whether or not the’ strip of land -covered by the roadbed wáslá part of the public highway when it was originally taken. The agreed státement of facts merely recites that “said defendant company originally constructed its road along the north side of the old public highway, now known as Railroad Avenue.’ ” It is not important, however, whether the land originally taken was a part of the highway or not. The fact that the company had previously taken and occupied a part of the street before the plaintiff became the owner of the abutting • lot .would not deprive him of the right to recover the damages caused by the new taking.
Rehearing denied.