St. L., I. M. & S. Ry. v. Walbrink
Supreme Court of Arkansas
APPEAL from Poinsett Circuit Court. Hon. W. H. Cate, Circuit Judge. The first cause of action alleged by plaintiff, is the failure "to erect “ cow gaps" on his line of fencing where the road crosses, by which neglect or failure he was prevented from •raising a crop for the year 1882, to his damage one hundred -dollars. This charge plaintiff failed absolutely to sustain by any ■proof whatever, and it was specifically denied in the answer.
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APPEAL from Poinsett Circuit Court. Hon. W. H. Cate, Circuit Judge. The first cause of action alleged by plaintiff, is the failure "to erect “ cow gaps" on his line of fencing where the road crosses, by which neglect or failure he was prevented from •raising a crop for the year 1882, to his damage one hundred -dollars. This charge plaintiff failed absolutely to sustain by any ■proof whatever, and it was specifically denied in the answer. It is well settled that the plaintiff must recover secundum 1allegata et probata. He cannot declare upon one- theory, and recover upon another. Boardman v.…
1Opinion of the CourtSmith, J.
The complaint in brief charged :
1. That in 1881, plaintiff being the owner of “part of’ southwest quarter of southeast quarter, section 24, township 11 north, range 3 east,” donated to the defendant railway company a right of way over said land.
That under said grant, defendant, in 1882, constructed its. .railroad tracks over said land. That the right of way donated was of the width of one hundred feet. That in order to construct its roadway, defendant removed the fencing on said land and neglected or refused to replace it, or to erect “ cow gaps,”’ or other means to protect the growing crops…
2Cases cited2 opinions
- Norris v. Vermont Central RailroadSupreme Court of Vermont · 1855
- Alton & Sangamon Railroad v. BaughIllinois Supreme Court · 1852
3Cited by9 opinions
- St. Louis, Iron Mountain & Southern Ry. Co. v. BrooksherSupreme Court of Arkansas · 1908
- Powers v. St. Louis, Iron Mountain & Southern Railway Co.Missouri Court of Appeals · 1897
- John H. Parker Construction Co. v. AldridgeSupreme Court of Arkansas · 1993
- Choctaw & Memphis Railway Co. v. VosburgSupreme Court of Arkansas · 1903
- Daniels v. Board of DirectorsSupreme Court of Arkansas · 1907
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