Cleveland School District v. Great Northern Railway Co.
| Decision Date | 21 May 1910 |
| Citation | 126 N.W. 995,20 N.D. 124 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson county; Honorable Chas. F Templeton, J.
Action by Cleveland School District, a corporation, against Great Northern Railway Company, a corporation. From a judgment in favor of plaintiff, and from an order denying a new trial defendant appeals.
Affirmed.
Murphy & Duggan, for appellant.
The value of the trees destroyed, as they stood at the time of the fire, is the true measure of damages. Kansas City & O. R. Co. v. Rogers, 48 Neb. 653, 67 N.W. 602; Fremont, E. & M. Valley R. Co. v. Crum, 30 Neb. 70 46 N.W. 217; Missouri, K. & T. R. Co. v. Lycan, 57 Kan. 635, 47 P. 526; Atchison, T. & S. F. R. Co. v Hays, 8 Kan.App. 545, 54 P. 322; Kansas City, Ft. S. & M. R. Co. v. Perry, 65 Kan. 792, 70 P. 876; Andrews v. Youmans, 82 Wis. 81, 52 N.W. 23; Gilman v. Brown, 115 Wis. 1, 91 N.W. 227; Atchison, T. & S. F. R. Co. v. Geiser, 68 Kan. 281, 75 P. 68, 1 A. & E. Ann. Cas. 812; Mogollon Gold & Copper Co. v. Stout, 14 N. M. 245, 91 P. 724; Hooper v. Smith (Tex. Civ. App.) 53 S.W. 65; Norfolk & W. R. Co. v. Bohannon, 85 Va. 293, 7 S.E. 236; Montgomery v. Locke, 72 Cal. 75, 13 P. 401; Stoner v. Texas & P. R. Co. 45 La.Ann. 115, 11 So. 875; White v. Chicago, M. & St. P. R. Co. 1 S.D. 326, 9 L.R.A. 824, 47 N.W. 146; Atkinson v. Atlantic & P. R. Co. 63 Mo. 367; Elvins v. Delaware & A. Teleg. & Teleph. Co. 63 N.J.L. 243, 76 Am. St. Rep. 217, 43 A. 903.
Kelly & Sampson and Scott Rex, for respondent.
The damage is the difference in the value of the land before and after the injury. Carner v. Chicago, St. P. M. & O. R. Co. 43 Minn. 375, 45 N.W. 713; Evans v. Keystone Gas Co. 148 N.Y. 112, 30 L.R.A. 651, 51 Am. St. Rep. 681, 42 N.E. 513; Hayes v. Chicago, M. & St. P. R. Co. 45 Minn. 18, 47 N.W. 260; Missouri, K. & T. R. Co. v. Lycan, 57 Kan. 635, 47 P. 526; Atchison, T. & S. F. R. Co. v. Geiser, 68 Kan. 281, 75 P. 68, 13 Am. & Eng. Enc. Law, pp. 538, 541; Joyce, Damages, § 2134; St. Louis, I. M. & S. R. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159; Alberts v. Husenetter, 77 Neb. 699, 110 N.W. 657; Rowe v. Chicago & N.W. R. Co. 102 Iowa 286, 71 N.W. 409.
This action was brought to recover damages for the destruction of ninety-five shade trees, situated on plaintiff's property, adjacent to the right of way of defendant. Plaintiff owns about 1 1/2 acres of land adjoining the defendant's right of way, and had on this land on October 4, 1906, a consolidated school building, erected at a cost somewhat in excess of $ 6,000, and 95 to 100 young shade trees. The trees were set out in spring of 1904, and formed a double row along the westerly side and northerly end of the school ground. They were destroyed by fire on October 4, 1906, set out and allowed to escape by defendant's section men, who were engaged in burning off defendant's right of way adjacent to plaintiff's property. The evidence shows that at the time of the fire the trees had three seasons' growth and were in a thrifty, healthy condition. About 100 trees had been broken down or dried, so that the 95 trees had been set out, a few had been broken down or dried, so that the 95 trees destroyed by the fire were practically all the trees on the premises. Plaintiff in the complaint laid its damages at $ 950. The jury returned a verdict for $ 573, upon which judgment was entered. A motion for a new trial was made and denied, and this appeal is from such order and judgment. On this appeal the controversy turns on the measure of damages to be adopted in such a case, and the admissibility of testimony of value.
This case was tried in the court below by respondent on the theory that the measure of respondent's damages was the difference in value of the school property before and after the fire, and was submitted to the jury on such theory. The court charged the jury as follows: This instruction was excepted to by the appellant, and is assigned as error. The case was tried in the court below by appellant on the theory that the cost of replacing the trees was the measure of respondent's damages. In this court, however, the rule of damages for which appellant contends is the value of the trees destroyed, as they stood appurtenant to and attached to the realty, and contends that the damage could not in any event exceed the difference between the value of the land before and after the fire, the value of the trees as they stood must be limited to the difference between the value of the land entire before and after the fire. Appellant, however, argues with great force and plausibility, that the fact that the damages should not exceed the said difference does not mean that such difference is the most accurate or direct test of the loss. It contends that such damages should be exactly the same, no matter by which method they are measured, if they are properly proven and found, and that it is a settled general rule of law that the measure of damages should be adopted which is the most direct and easiest of accurate application, likewise the simplest; that the rule adopted offends against this general principle; that it is indirect, in attempting to ascertain the damages by a proposition in subtraction; it is inaccurate in its practical application, for the reason that it compels the jury to think in thousands of dollars in values, where the actual damages could not be more than a few hundred dollars. It seems to us that the rule to be adopted in any case depends upon the character and object of the particular action. Some courts hold that the plaintiff has his election to sue either for the value of the thing destroyed or for the injury to the freehold, that is, for the difference in value of the real estate before and after the fire. Bailey v. Chicago, M. & St. P. R. Co. 3 S.D. 531, 19 L.R.A. 653, 54 N.W. 596.
In Bailey v. Chicago, M. & St. P. R. Co. supra, which was an action to recover damages for burning and destroying trees and shrubbery, the court says: In the case at bar, the plaintiff, having brought its action for injury to the real estate, we think the measure of damages laid down by the trial court is correct.
Although the authorities are not uniform, the true rule is believed to be, that where property attached to realty is destroyed by fire the plaintiff may, at his election, seek to recover its value in its detached from, or as part of the realty, in which latter event the measure would be the difference in the value of the realty before and after the fire. 13 Am. & Eng. Enc. Law, p. 540 and cases cited.
The measure of damages for the destruction of fruit, shade ornamental, or growing trees or shrubbery, is the difference between the value of the land before and after they were destroyed. Joyce, Damages, § 2134 and cases cited; Carner v. Chicago, St. P. M. & O. R. Co. 43 Minn. 375, 45 N.W. 713; Hayes v. Chicago, M. & St. P. R. Co. 45 Minn. 17, 47 N.W. 260; Delaware, L. & W. R. Co. v. Salmon, 39 N.J.L. 299, 23 Am. Rep. 214; Bevier v. Delaware & H. Canal Co. 13 Hun 254; St. Louis, I. M. & S. R. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159; Evans v. Keystone Gas Co. 148 N.Y. 112, 30 L.R.A. 651, 51 Am. St. Rep. 681, 42 N.E. 513; Rowe v. Chicago & N.W. R. Co. 102 Iowa 286, 71 N.W. 409; Hooper v. Smith (Tex. Civ. App.) 53 S.W. 65; Mogollon Gold & Copper Co. v. Stout, 14 N.M. 245, 91 P. 724; Atchison, T. & S. F. R. Co. v. Geiser, 68 Kan. 281, 75 P. 68, 1 A. & E. Ann. Cas. 812; St. Louis & S. F. R. Co. v. Noland, 75 Kan. 691, 90 P. 273; Bailey v. A. Siegel Gas Fixture Co. 54 Mo.App. 50; Central R. & Bkg. Co. v. Murray, 93 Ga. 256, 20 S.E. 129; Hoyt v. Southern New England Teleph. Co. 60...
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