(dissenting.) McCutchen testified that the railroad company filled up the ditch in 1901, and that it had ever since been obstructed by the filling up at that time when an embankment of the railroad was raised. Read, who gave testimony more favorable to appellee than his own, says: “I was able to keep the ditch open until they raised the side track. The company has opened it two or three times since. The first big rain it slides off from the dump and fills it up.” This shows that the ditch was filled up over three years before this suit was filed; that the act creating the obstruction was then done; and despite repeated opening of the ditch the construction of the embankment in 1901 causes, from its nature and manner, the obstruction to remain in the ditch. The cases of St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, Railway Company v. Yarborough, 56 Ark. 611, Railway Company v. Cook, 57 Ark. 387, St. Louis, I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, and St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542, settle the cause of action as one created by the obstruction in 1901; and consequently it was barred when this action was brought.
Appellee, under a complaint which was sufficient to have recovered for all prospective as well as present damage to his land, took a judgment by consent for $50. This barred another action for the same cause.
The action should be reversed and dismissed.