Bailey v. Chicago

• Decision Date: 08 February 1893
• Citation: 3 S.D. 531,54 N.W. 596
• Court: South Dakota Supreme Court
• Parties: GEORGE W. BAILEY, Plaintiffs and respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant.

3 S.D. 531

54 N.W. 596

M. & St. P. Ry. Co., 19 LRA 653 (1893)

GEORGE W. BAILEY, Plaintiffs and respondent,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Turner County, SD Hon. E. G. Smith, Judge Affirmed Winsor & Kittredge, Sioux Falls, SD Attorneys for appellant. Palmer & Rogde, Sioux Falls, SD Attorneys for respondent. Opinion filed Feb. 8, 1893

KELLAM, J.

This action was brought to recover of the defendant company damages for negligently burning and destroying plaintiff’s trees and shrubbery. He recovered judgment, and defendant appeals.

On the trial the court adopted as the measure of damages the value of the trees and shrubbery so destroyed. The appellant claims the proper rule was the difference in value of the real estate, of which the trees and shrubbery were a part, immediately before and immediately after the injury, and cites, in support, Carner v. Railway Co., (Minn.) and Hayes v. Railway Co., (Minn.) 47 N.W. 260. But it seems to us that the rule to be adopted in any case depends upon the character and object of the particular action. While growing trees and improvements are generally a part of the real estate upon which they stand, still the owner may for a particular purpose treat them as personal property. If a building be destroyed, or detached from and moved away from the owner’s real estate, he may recover the value of the building, independently of its connection with the real estate, (3 Suth. Dam. 373; White v. Chicago, M. & St. P. Ry. Co.,(1890); Whitbeck v. Railroad Co., 36 Barb., 644,) or he may bring his action for the injury to the real estate, and recover therefor. If A. sue B., and state his cause of action to be that B. dug up and carried away from his premises a quantity of gravel of the value stated, and ask to recover therefor, the measure of the damages is the value of such gravel, separate from and independent of the injury to the premises from which it was taken; but if, for the same wrongful act of B., the action is brought by A. to recover for the injury to his premises, then the measure of the damages is not the value of the material removed, but the difference in the value of such premises immediately before and immediately after the injury. If he sue specifically for the value of the material taken away, he could not, of course, recover in such action for injury to the real estate resulting from the excavation. If he sue for the value of such material, he may recover that, and its value will be ascertained as in case of any other personal property; but, if he sue for the injury to his real estate, he may recover that, and such injury will be measured by the usual rule of diminished value. So we say the rule of damages depends upon the purpose and character of the action. A party injured as complained of in this action may bring his suit for destroying his trees, and in such action recover the value of such trees, not as a part of the realty, but their intrinsic value as detached and separated therefrom, and proved in the usual mode of proving value; or he may bring his action for injury to his real estate, and recover its diminution in value. Each action has its appropriate rule of damages. A single tree, a grove of growing trees, or a forest of mature timber has an intrinsic, estimable value for the material it contains. That value may be more, or it may be less, than what it adds to the value of the real estate upon which it stands. If the tree or the grove or the forest is destroyed, the owner ought to be allowed to exercise his own judgment whether he will seek to recover the value of his property destroyed, or the diminished value of his land from which it was destroyed. When he does this he determines the rule of damages by which his injury will be measured. Dwight v. Railroad Co., 132 NY 199, is a recent case, and was for injury to the real estate occasioned by destruction of fruit trees growing thereon. After recognizing the distinction we have attempted to make, the court says: “A party may be content to accept the. market value of the thing taken, when he is also entitled to recover for the injury done to the freehold; but if he assert his right to go beyond the value of the thing taken or destroyed, after severance from the freehold, so as to secure compensation for the damage done to his land because of it, then the measure of damages is the difference in value of the land before and after the injury.” The court then observes that inasmuch as in that case the plaintiff was not satisfied with a recovery based on the value of the trees destroyed, after separation from the realty of which they formed a part, but brought his action for injury to the land, its diminished value was the proper measure of damages in that case. We think this principle should control this case as to the proper measure of damages. The action was brought specifically to recover the value of the trees destroyed, and we think the measure of damages adopted by the trial court was the correct one. See Whitbeck v. Railroad Co., supra; Railroad Co. v. Crum, (Neb.) 46 N.W. 217; Dwight v. Railroad Co., supra.

The next error assigned is that the court refused “to strike out the answer to the question, ‘Give us your best judgment as to the value of those trees;’” but this assignment does not match anything we find in the abstract. The plaintiff’s testimony, in which the ruling complained of occurred, is given in the abstract in narrative form, down to and subsequent to this question, as follows: “I am the plaintiff … These trees, for the purposes they were put there, were worth $1.00 apiece. They were worth at least 75 cents apiece to me. Question. Give us your best judgment as to the fair value of those trees. (Defendant objects as not responsive. The question should be as to the fair value of the 600 or 700 trees standing there at the time. The defendant asks to have the preceding answer stricken out. Motion denied, and defendant excepts.) Answer. Those trees, according to my best judgment, as they were standing there, were worth at least $400.” There is thus some confusion between the abstract and the assignment of error; but, assuming that the matter objected to was the answer preceding this question, as indicated in the abstract, and not the answer to the question, as stated in the assignment, we are still unable to know how much of the testimony preceding the question was included in the answer asked to be stricken out. This, however, probably is not important as, tested by the rule which we have indicated, this evidence was all irrelevant. The plaintiff had sued to recover the value of the trees destroyed, not as part of, or in connection with the real estate, but their intrinsic value, their value as firewood, or fence posts or rails, or any other purpose for which they had a value independent of the soil out of which they grew. In such action he was not entitled to prove their value “for the purpose for which they were put there,” for that would be proving their value as a part of the land. The evidence, however, was not challenged on that ground, but for the specific reason that it was not responsive. As the abstract does not purport to give the question to which such evidence was the answer, we have no means of knowing whether it was responsive or not. The ground of objection having been particularly stated, all other grounds were waived. State v. Leehman,(1891), and cases cited. Nor will a party on appeal be permitted to change the form of his objection. Id. Subsequently to the answers objected to, however, the plaintiff testified to the value of the trees “as they were standing there.” This was the very form of question suggested by defendant’s counsel, and we cannot construe it to mean the value of the trees for the purpose for which they were put there, but that the...