Big Five Mining Co. v. Left Hand Ditch Co.

• Decision Date: 02 July 1923
• Docket Number: 10278.
• Citation: 216 P. 719,73 Colo. 545
• Parties: BIG FIVE MINING CO. v. LEFT HAND DITCH CO. et al.
• Court: Colorado Supreme Court

216 P. 719

73 Colo. 545

BIG FIVE MINING CO. v. LEFT HAND DITCH CO. et al.

No. 10278.

Supreme Court of Colorado, En Banc.

July 2, 1923

Error to District Court, Boulder County; George H. Bradfield Judge.

Action by the Big Five Mining Company against the Left Hand Ditch Company and another. Judgment for plaintiff on directed verdict for only the amount of damages admitted by defendants, and plaintiff brings error.

Reversed.

Campbell J., dissenting.

Carle Whitehead and Albert L. Vogl, both of Denver, for plaintiff in error.

Henry E. Lutz, of Denver, and Rudolph Johnson, of Boulder, for defendants in error.

TELLER C.J.

Plaintiff in error sued defendants in error for damages to plaintiff's property by flood, resulting from the breaking of the dam of defendants' reservoir. Defendants' liability was conceded, and the question tried was as to the amount of damages. The complaint charged that the flood washed away the surface soil of a mill site, and several lode claims, for a long distance along the banks of Left Hand creek, destroyed a water system, including a dam and pipe line used for supplying water to the mill, and a portion of the road and bridge by which access was had to the mill, and, in addition, destroyed some personal property in the mill.

Plaintiff introduced evidence showing the cost of restoring the water system, repairing the road and the mill, and rebuilding the bridge.

The defendant conceded liability for damages to the personal property of plaintiff to the extent of $124.66. On motion of defendants, the court directed the jury to return a verdict for that sum, and to make no finding whatever as to the damage to the real estate. A verdict was returned accordingly, and judgment entered on the verdict.

Plaintiff in error contends that the court erred in thus instructing the jury. It claims first, that no direction for a verdict should have been given because, in any event, the plaintiff was entitled to nominal damages; and, second, that the evidence as to the cost of repairs and replacement was competent, though not conclusive as to the damages suffered.

The first objection need not be considered, since the judgment gave substantial damages.

The trial court directed a verdict avowedly upon the case of Mustang Reservoir Co. v. Hissman, 49 Colo. 308, 112 P. 800. While the general rule is that damages to real estate are to be determined by finding the difference between its value before the injury and its value afterwards, it is not of universal application; there being cases in which it would not do justice. In the case above mentioned the plaintiff claimed damages because of the flooding of 90 acres of his land by the breaking of a reservoir dam. It was held that a tendered instruction, laying down the rule above stated, was erroneously refused 'under the facts here shown.' In the opinion it is pointed out that the cost of removing the rubbish and débris from the land might be more than the value of the land before the injury, and more than it would be worth after being cleared. The opinion admits that it would have been competent for the plaintiff to show what would be a reasonable cost for clearing the land 'as an element in assisting to determine the difference in the value of the land just before and immediately after the flooding.'

It is further stated that the cost of clearing the land was not the measure of damages, 'but rather evidence to be considered in connection with other circumstances in estimating the extent thereof.' Applying the language of the court in that case to the instant case, it is clear that there was evidence proper to be considered in estimating the amount of damages which plaintiff had suffered.

In State Insurance Co. v. Taylor, 14 Colo. 499, 24 P. 333, 20 Am.St.Rep. 281, it is stated that the measure of damages in case of injury to or destruction of a building is not simply the difference between the value before and the value after the injury, to be determined by showing the market value before and after; and that actual loss may occur to property which has no market value at all. We there said that it is for the jury to determine how much money will make good the loss.

In Jones v. Boudurant, 21 Colo.App. 24, 120 P. 1047, and in Colorado Springs Co. v. Albrecht, 22 Colo.App. 201, 123 P. 957, the court recognizes that evidence as to the cost of repairing damages to improvements is admissible, as bearing upon the damage to the freehold.

It would seem that the general rule that evidence is admissible which is the best, in the nature of the case, obtainable should apply in a case like this. It is clear that mining claims have no market value, nor have mills thereon, or private roads thereto; hence other evidence tending to show the loss should be admitted.

In Langdon v. The Mayor, 133 N.Y. 628, 31 N.E. 98, it was held that where a necessity existed for departing from the general rule as to the measure of damages, that rule would not be applied; and that the best evidence obtainable as to damages would be admissible. One claiming damage is therefore remitted to such evidence as will best enable the jury to determine what loss has been suffered, when the...