Louisville, N.A.&C. Ry. Co. v. Sparks

• Decision Date: 25 April 1895
• Parties: LOUISVILLE, N. A. & C. RY. CO. v. SPARKS et al.
• Court: Indiana Appellate Court

12 Ind.App. 410

40 N.E. 546

LOUISVILLE, N. A. & C. RY. CO.

v.SPARKS et al.

Appellate Court of Indiana.

April 25, 1895.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

Action by Fannie A. Sparks and another against the Louisville, New Albany & Chicago Railway Company. There was a judgment for plaintiffs, and defendant appeals. Reversed.

E. C. Field, W. S. Kinnan, and W. C. Utz, for appellant. Jewett & Jewett, for appellees.

REINHARD, J.

The appellees are husband and wife, and this action was brought by them against the appellant for damages to the real estate of the wife on account of the alleged negligence of the appellant in reconstructing a culvert near its railroad and the said real estate, causing the water to back, overflow, and stand upon the same, and injuring it in various ways, and injuring the crops thereon and the health of the appellee Fannie A. Sparks. In the court below the appellees recovered. At the trial, appellees' counsel propounded to John P. Sparks, the husband and witness of Fannie A. Sparks, the following question: “You may state to the jury what, in your judgment, is the depreciation in value of the property, and injury to the crops, on account of these overflows that you have detailed occurring since the sewer pipe was substituted for the culvert.” To this question the appellant's counsel objected, because it sought to elicit from the witness a conclusion, and not a fact. The objection was overruled, and the appellant excepted. The witness then answered, “A thousand dollars,” which was all the evidence given on the subject of the amount of damages. The question involved two elements of damages, viz. damages to the real estate, and damages to the growing crops. Each of these formed a proper subject of inquiry, which should have been pursued separately, although the objection was not based upon the ground of the duplicity of the question.

Before determining the question before us, it is proper to ascertain what is the measure of damages for the injury to the land and to the growing crops. Injuries of the character here sued for are somewhat analogous to those involved in actions for damages for the wrongful appropriation of land for municipal corporations or railroad companies. In all such cases, where the injury is a permanent one, the measure of damages to the land is the diminished market value of the same by reason of the injury, which is ascertained by proof of the market value before the injury and the market value after the injury, leaving it to the jury or court trying the cause to calculate the difference. If, however, the injury is not a permanent one, and the action does not recognize the right of the defendant to continue the obstruction, then it seems that damages can only be recovered up to the time of the commencement of the action, and that successive actions may be brought for successive injuries resulting from the same, and the measure of damages is found in the depreciation, not of the value of the land, but of the value of the use of the same, which is ascertained by proof of such value before and after the jury. 1 Suth. Dam. § 116; Sedg. Dam. (8th Ed.) § 942, and cases there cited; City of Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N. E. 324;Railway Co. v. Eberle, 110 Ind. 542, 551, 11 N. E. 467.

Where the destruction or injury of the crops enters into the...