(after stating the facts). It is contended for the appellant that it is not liable to the. payment of damages resulting to the lands from the construction of its railroad on the right-of-way purchased from appellees ’ grantor prior to, and excepted from its conveyance to him, unless the road was constructed in a negligent and improper manner and that there was no testimony showing that .such was the case.
It is true, as stated by appellant, that the appellee knew when he purchased the land that his grantor had already conveyed a right-of-way through the same, to the appellant company, upon which to construct its railroad and necessarily haid been paid for such damage to the remaining tract as would probably result from the proper construction of the railroad.
The engineers who had in charge the construction of the railroad, testified that it was properly constructed in all respects and no witness testified that it was negligently or improperly constructed. .The effect of the testimony in behalf of appellees was only to show that the railroad company closed a small drain by its embankment, where it could have left an opening for a drainage pipe that would have carried the water off as formerly, and diverted it to the 'channel of the main branch by a ditch instead, that a good deal more water was thus caused to flow through the main channel of this drain than had formerly and the land below the embankment was thereby overflowed and damaged.
If this was a suit for condemnation of lands for right-of-way .purposes, there is no question but that the damage complained of could have been taken into consideration in estimating the amount of compensation required to be paid to the owner for damages for land taken for the right-of-way, it constituting necessarily a permanent injury. Since it was a proper element of damage, however, to be considered in estimating the value of lands purchased for right-of-way and since the appellant company had purchased of appellees’ grantor the right-of-way across this land upon which its road was afterward constructed and from whom appellee purchased the tract of land, subject to appellant’s right to construct the railroad, it necessarily follows that all the damages resulting from the proper construction of the road along the right-of-way purchased was already paid in the purchase of the right-of-way and that appellee could not recover damages that must have been considered and compensated in the fixing and payment of the price for the right-of-way. The undisputed testimony shows that the railroad was properly constructed, that only a small amount of surface water from not more than seven and one-half acres of land was diverted from a small drain which was filled up, to the channel of the branch which overflowed and caused appellee’s damage. A great amount of water could not have been thus diverted, and the witnesses testified that before the small drain was closed and the water diverted to the main branch that the waters flowing through the main channel of the branch on appellee’s land was di-scharged through the public road on the south of the tract through ian 'Opening about one-third of the size now required for the purpose.
It is unnecessary to discuss the alleged conflict of instructions numbered 1, 2 and 3 with those numbered 2, 3 and 4, given for appellant, since there is no testimony sufficient to support the verdict.
The judgment is reversed and the cause dismissed.