Lapas attēli
PDF
ePub

$7229. Permanent and Temporary Injuries to Land.-Where the injury to real estate is permanent, the damages may be assessed on the basis of a permanent depreciation of the value of the property, and the result is shown by the difference in the value of the land before the injury and its value immediately afterwards. The depreciation of value may be shown by evidence of the decrease in rental value consequent upon the injury. Where the injury is temporary and may be abated, the recovery is limited to the amount necessary to put the land in as good a condition as it was before the injury, and, in addition, compensation for any loss of use during the time it was rendered unfit for occupancy. If the injury is not permanent, damages for lost use and occupation can be recovered only for such a period as is reasonably sufficient to enable the plaintiff to effect repairs and replace the premises in their former condition; and in those cases where premises are rendered untenable in consequence of the injury, the loss of rents cannot be recovered unless specially alleged.'

§ 7230. Failure of Excavator to Protect Foundation of Adjoining Building. Where a building is injured by the failure of a contractor of an adjoining excavation properly to protect the foundation of such building, the measure of damages is the actual damage to the property, together with compensation for the delay in its payment.

§ 7231. Damages to Land by the Negligent Construction of a Railroad. The measure of damages for injuries to land caused by the negligent construction of a railroad over the land is the difference in the value of the land with the road constructed as it is and the value if it had been properly constructed. In determining this question,

Ill. 418; Toledo &c. R. Co. v. Johnston, 74 Ill. 83; North Vernon v. Voegler, 103 Ind. 314; s. c. 1 West. Rep. 566; Whipple v. Walpole, 10 N. H. 130; Barnard v. Poor, 21 Pick. (Mass.) 381; Atkinson v. Atlantic &c. R. Co., 63 Mo. 367; Chapman v. Chicago &c. R. Co., 26 Wis. 304; Ohio &c. R. Co. v. Trapp, 4 Ind. App. 69; s. c. 30 N. E. Rep. 812.

'Indiana &c. R. Co. v. Eberle, 110 Ind. 542; s. c. 9 West. Rep. 206; 11 N. E. Rep. 467; Columbus &c. R. Co. v. Gardner, 45 Ohio St. 309; s. c. 11 West. Rep. 264; 13 N. E. Rep. 69; Fort Worth &c. R. Co. v. Hogsett, 67 Tex. 685; s. c. 4 S. W. Rep. 365; Owens v. Missouri Pac. R. Co., 67 Tex. 679: s. c. 4 S. W. Rep. 593; Clark v. Ellithorpe. 7 Kan. App. 337; s. c. 51 Pac. Rep. 940.

[blocks in formation]

evidence that the land is increased in value by the construction of a railroad thereon is without relevancy.10

11

§ 7232. Flooding Lands.-Where the flooding of lands results in permanent injury, the recovery is the difference between the value of the property immediately before and the value as reduced by the injury. The expense of restoring the property to its former condition is immaterial. Thus, where, by the diversion of a stream from its channel, a bar of gravel was deposited upon the land by the flood, it was held that the proper rule of damages had no reference to the cost of removing the bar since that might more than exceed the value of the land; but the true measure of damages was the depreciation of the value of the land in consequence of the deposit.12 Where the damage is not permanent and irreparable, the measure of damages is only such amount as will put the land in as good a condition as it was before the injury, with compensation for any loss of use during the time it was rendered unfit for occupation.13 The injury to land from the negligent failure of a railroad company to construct a culvert for the passage of surface water flowing in a natural channel is not permanent, within the rule that the measure of damages for permanent injuries to land is the difference between the fair market value of the land immediately before and immediately after the injury; but the measure of damages in such case is the difference in rental value of the land with a culvert to carry away such surface water and without it.1* The damages recoverable for the negligent construction of the roadbed

10 Carson v. Norfolk &c. R. Co., 128 N. C. 95; s. c. 38 S. E. Rep. 287.

"Sterling Hydraulic Co. v. Galt, 81 Ill. App. 600; Maysville v. Stanton, 12 Ky. L. Rep. 586; s. c. 14 S. W. Rep. 675; Lloy v. Dartmouth, 30 N. S. 208.

12 Easterbrook v. Erie R. Co., 51 Barb. (N. Y.) 94. For a similar principle with reference to personal property, see Barnard v. Poor, 21 Pick. (Mass.) 381.

13 Keithsburg v. Simpson, 70 Ill. App. 467; Toledo v. Lewis, 9 Ohio C. D. 451; s. c. 17 Ohio C. C. 588; s. c. aff'd, 52 Ohio St. 624 (injuries to health from collection of foul water on premises); Beach v. Scranton, 5 Lac. Leg. N. (Pa.) 25; Texas &c. R. Co. v. Maddox, 26 Tex. Civ. App. 297; s. c. 63 S. W. Rep. 134 (sickness from condition brought about by flooding). See also, Kansas City &c. R. Co. v. Cook, 57 Ark. 387; St. Louis &c. R. Co. v. Yarborough,

14

56 Ark. 612; Paine Lumber Co. v. United States, 55 Fed. Rep. 854; Chicago &c. R. Co. v. Eichman, 47 Ill. App. 156; Willitts v. Chicago &c. R. Co., 88 Iowa 281; s. c. 21 L. R. A. 608; The Redemptorist v. Wenig, 79 Md. 348; Carson V. Springfield, 53 Mo. App. 289; McKee v. St. Louis &c. R. Co., 49 Mo. App. 174; Mize v. Glenn, 38 Mo. App. 98; Illinois &c. R. Co. v. Miller, 68 Miss. 760; Higgins v. New York &c. R. Co., 78 Hun (N. Y.) 567; Gillett v. Kinderhook, 77 Hun (N. Y.) 604; Reichert v. Backenstross, 71 Hun (N. Y.) 516; Adams v. Durham &c. R. Co., 110 N. C. 325; Gentry v. Richmond &c. R. Co., 38 S. C. 284; Gulf &c. R. Co. v. Haskell, 4 Tex. Civ. App. 550; Broussard v. Sabine &c. R. Co., 80 Tex. 329; Barden v. Portage, 79 Wis. 126.

14 Jungblum v. Minneapolis &c. R. Co., 70 Minn. 153; s. c. 72 N. W. Rep. 971.

of a railroad so as to overflow adjoining pasture lands is the value of the use of the pasture for such time as the owner is deprived of its use;. and damages for alleged starvation of cattle deprived of pasture thereby are regarded as too remote for a recovery.15 And where, in consequence of a railway embankment, the flood-waters of a river were pent back, and flowed on the land of the plaintiff, doing injury to a certain amount, and, had the embankment not been constructed, the waters would have flowed a different way, but would have reached the plaintiff's land, and would have done damage to a lesser amount, the measure of damages recoverable against the railway company was held to be the difference only between the two amounts.1 Where this form of negligence deprives one of the use of his home, the measure of damages is the cost of restoring the property to its former condition, together with compensation for the loss of its use.17 A complaint, generally averring sickness of the plaintiff's family caused by the existence of stagnant water, need not specifically name every member of the family so afflicted.18 Here as elsewhere throughout the law of negligence, the only damages recoverable are those proximately resulting from the negligent act.19

16

§ 7233. Damages for Lowering Water Level. The measure of damages for lowering the water level on premises by a pumping system furnishing the water supply for a city is the difference between the value of the lands with and without their natural water. 20 But the owner of the land affected through this means can not continue to work his land and attempt to make the owners of the pumping system liable for special damages to the extent of the labor, skill and expenses of cultivation after the water has been lowered.21

$7234. Negligence of Title Company.-The measure of damages for the negligence of a title company in inserting a description of the wrong property in a deed which it was employed to prepare by a purchaser, is the amount of the contract price paid by the purchaser, without reduction on account of the property described in the deed,

15 Broussard v. Sabine &c. R. Co., 80 Tex. 329; s. c. 16 S. W. Rep. 30. 18 Workman v. Great Northern R. Co., 32 L. J. (Q. B.) 279. But see a modification of this rule in Terry V. New York &c. R. Co., 8 Bosw. (N. Y.) 504.

"Helbling v. Allegheny Cemetery Co., 201 Pa. St. 171; s. c. 50 Atl. Rep. 970.

19 Texas &c. R. Co. v. Maddox, 26

Tex. Civ. App. 297; s. c. 63 S. W.
Rep. 134.

19 Chidester V. Consolidated &c. Ditch Co., 53 Cal. 56.

20 Reisert v. New York, 35 Misc. (N. Y.) 413; s. c. 71 N. Y. Supp. 965.

21 Reisert v. New York, 35 Misc. (N. Y.) 413; s. c. 71 N. Y. Supp. 965.

although it was owned by the grantor, if the grantor is insolvent, and the property which she intended to purchase has been sold under a mortgage, as she acquired no title. to the property described in the deed by the mistake of the title company.22

§ 7235. Obstruction of Highway.-By a statute of New Hampshire, it is provided that "if any person shall place in any highway or street any timber, lumber, stones, or other things, to the encumbrance or obstruction thereof, he shall be liable to the town for all damages and costs which said town shall be compelled to pay to any person who has sustained damages by reason of such encumbrance or obstruction."23 Under this act, it was held that the expense of litigation incurred by a town in defending such an action could not be included in the recovery.24 Where the action is by a municipal corporation for an injury to a roadway which it is bound to keep in convenient and suitable repair for the use of the public, the proper measure of damages would be the expense necessary to replace it in a proper and legal condition. 25 In a case where it was alleged that the plaintiff's homestead and his mills, which abutted upon a public road, were rendered much less valuable, and the plaintiff was harassed and worried and was put to great inconvenience and expense by reason of a wrongful obstruction, the plaintiff was allowed to introduce in evidence. testimony relating to the inconvenience caused to himself and family to reach the neighboring postoffice, church and schools.26

§ 7236. Destruction of Growing Crops.-Where the injury is done to a growing crop, the measure of damages is the actual value of the crop at the time the loss occurred, to be determined by facts as then existing.28 The profits that would have been realized had the crops matured are not to be considered.29 Where the immediate injury

22 Ehmer v. Title Guarantee &c. Co., 156 N. Y. 10; s. c. 50 N. E. Rep. 420; aff'g s. c. 89 Hun (N. Y.) 120. 23 Pub. St. N. H. 1901, ch. 77, § 14. 24 Littleton v. Richardson, 32 N. H. 59.

Topsham v. Lisbon, 65 Me. 464. Coggins v. Myrick (Ala.), 31 South. Rep. 22.

Donald v. St. Louis &c. R. Co., 44 Iowa 157.

28 Adams v. Stadler, 78 Ill. App. 432; Burnett v. Great Northern R. Co., 76 Minn. 461; s. c. 79 N. W. Rep. 523; Richardson v. Northrup, 66 Barb. (N. Y.) 85; Ducktown Sulphur &c. Co. v. Barnes (Tenn.), 60 S. W. Rep. 593. The damages re

coverable for destruction of growing crops are limited to their actual value when destroyed, with interest from the date of injury, and such value is to be ascertained from consideration of the circumstances existing at the time of destruction favoring or rendering doubtful the conclusion that they would attain to a more valuable condition, and of the hazard and expenses incident to the process of supposed growth or appreciation: Kansas City &c. R. Co. v. Pirtle, 67 Ark. 617; s. c. 55 S. W. Rep. 940.

20 Horres v. Berkley Chemical Co., 57 S. C. 189; s. c. 35 S. E. Rep. 500.

was to the plaintiff's fence, and an injury to the crop resulted from the defect in the fence, and the plaintiff was aware of the defect in time to have repaired it, and failed to do so, it was held that the measure of his damage was the injury to the fence and the necessary expense of repairing it, and that he could not recover for the consequent injury to the crop.30

§ 7237. Destruction of Grass and Hay.-The measure of damages for the destruction of grass and sod by fire is the value of the grass destroyed together with the difference in the value of the land immediately before and after the fire.31 The measure of damages for the grass is the reasonable market value of the grass at the time it · was destroyed, and, if it had no market price, then its value in view of the use to which it was to be put.32 Where hay or straw in the stack is destroyed the measure of damages is the value of like straw or hay at the nearest market plus the cost of getting it from such market to the place where the hay or straw was destroyed.33 One in the possession of grazing lands will be allowed to recover for the grass destroyed by a fire set out by a railroad locomotive, only its value from the time he was entitled to possession of the land.3

34

§ 7238. Destruction of Trees.-Fruit, shade and ornamental trees and growing timber are considered as attached to the realty and a part of it, and the measure of damages for their injury or destruction is the difference in value of the land on which they grew before and after

* Loker V. Damon, 17 Pick. jacent to the right of way, the meas

(Mass.) 284.

Baltimore &c. R. Co. v. Irwin, 97 Ill. App. 337; Illinois Cent. R. Co. v. Almon, 100 Ill. App. 530; Bradley v. Iowa Cent. R. Co., 111 Iowa 562; s. c. 82 N. W. Rep. 996; Galveston &c. R. Co. v. Chittim, 31 Tex. Civ. App. 40; s. c. 71 S. W. Rep. 294; International &c. R. Co. v. McIver (Tex. Civ. App.), 40 S. W. Rep. 438 (no off. rep.); Jackson v. Missouri &c. R. Co., Tex. Civ. App.; s. c. 78 S. W. Rep. 724; Gulf &c. R. Co. v. Kluge, 4 Tex. Civ. App. 577; s. c. 17 S. W. Rep. 944; Lake Erie &c. R. Co. v. Holderman, 56 Ill. App. 144.

Galveston &c. R. Co. v. Chittim, 31 Tex. Civ. App. 40; s. c. 71 S. W. Rep. 294; Kyle v. Ohio River R. Co., 49 W. Va. 296; s. c. 38 S. E. Rep. 489. In an action against a railroad company for damages caused by burning a part of a meadow ad

ure of damages was the cost of reseeding and the rental value of the land during the time it was rendered unproductive for the purpose for which it was being used, as shown by evidence of what portions of the land not burned actually produced, and not the general rental value of land in that vicinity: Black v. Minneapolis &c. R. Co., Iowa -; s. c. 96 N. W. Rep. 984.

S.

33 Chicago &c. R. Co. v. Gitchell, 95 Ill. App. 1. But see Watt v. Nevada &c. R. Co., 23 Nev. 154; c. 44 Pac. Rep. 423; 3 Am. & Eng. R. Cas. (N. S.) 659; s. c. modified on rehear'g, 46 Pac. Rep. 52; rehear'g denied, 46 Pac. Rep. 726, which holds that the cost of transportation may not be added.

34 Texas &c. R. Co. v. Torrey, 4 Tex. App. Civ. Cas. 445; s. c. 16 S. W. Rep. 547.

« iepriekšējāTurpināt »