Baldwin v. Chicago, Milwaukee & St. Paul Ry. Co.
| Decision Date | 07 July 1886 |
| Court | Minnesota Supreme Court |
| Parties | SUSAN C. BALDWIN <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. |
W. C. Williston and W. Colvill, for appellant.
William Gale, for respondent.
The plaintiff's house and lot are on one side of a street in the city of Red Wing, the track of defendant on the other side, the surface of the street sloping down from plaintiff's to defendant's side. November 1, 1882, the defendant, as plaintiff alleges, wrongfully entered on, and made large excavations in, the street, between her lot and the track, causing the earth in the street to slide into such excavations, and destroying the carriage-way in said street by which she, prior thereto, had access to her premises, rendering them unsafe for occupation, and diminishing their rental value in the sum of $19 per month. Treating the wrongs as a continuing trespass, she sues to recover this diminution in rental value, alleging no other damages. On the trial the plaintiff waived any claim to nominal damages, and, claiming to recover only the diminution in rental value, offered evidence to prove such diminution, which, on defendant's objection, was excluded; and, no damages being proved, the court directed a verdict for defendant. In both these rulings the court was right, — in the latter, because, no actual damages having been proved, the most that could in any event have been recovered was nominal damages; and, having waived her claim to those, the plaintiff could not recover them.
The plaintiff refers to Brakken v. Minn. & St. L. Ry. Co., 29 Minn. 41, 31 Minn. 45, and 32 Minn. 425, (11 N. W. Rep. 124, 16 N. W. Rep. 459, and 21 N. W. Rep. 414,) as establishing the proper rule of damages for the case. That was a case of what is called a "continuing wrong," in which, the injury being to real estate, the court held the rule of damages to be the diminution in the rental value. The railroad company having in that case the right to construct and maintain its railroad across the street, the wrong consisted in the improper construction of it, and the improper condition in which it left the street, the company continuing to maintain and keep the crossing in that improper condition. As the company had a right to, and might, at any time, remedy the wrong, the court held it improper to assess the damages on the...
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