Colorado Consolidated Land & Water Co. v. Hartman

• Decision Date: 08 October 1894
• Citation: 38 P. 62,5 Colo.App. 150
• Parties: COLORADO CONSOLIDATED LAND & WATER CO. et al. v. HARTMAN.
• Court: Colorado Court of Appeals

38 P. 62

5 Colo.App. 150

COLORADO CONSOLIDATED LAND & WATER CO. et al. v. HARTMAN.

Court of Appeals of Colorado

October 8, 1894

Appeal from district court, Montezuma county.

Action by George W. Hartman against the Colorado Consolidated Land &amp Water Company and others for injuries to land and for the destruction of standing crops. Judgment for plaintiff, and defendants appeal. Affirmed.

S.W Carpenter, for appellants

Chas A. Johnson and C.W. Blackmer, for appellee.

REED J.

Appellee brought suit against the appellant for injury to land and destruction of crops by water from the ditch of the defendant in the years from 1889 to 1891, both inclusive. The case was tried to a jury, resulting in a verdict for the plaintiff (appellee) of $1,500, judgment upon the verdict, and an appeal to this court. Only one question is relied upon in argument, and necessary to be considered by this court, viz the proper measure of damage. It is stated in the bill of exceptions as follows: "Certain evidence was offered by plaintiff in support of the allegations in his complaint herein as to the alleged destruction of the growing crops of plaintiff by the wrongful acts of defendant company, to wit how much per acre the said crops were worth in their condition and stage of growth upon the land at the time of the alleged destruction thereof; that the defendant company, by its attorney, then and there objected to the admission of said evidence, on the ground that the same was incompetent, and that the proper measure of damages in case of destruction of growing crops is the rental value of the land for the season during which the crops were grown thereon; that the court overruled said objection, and admitted the said evidence; to which ruling of the court said defendant company, by its attorney, then and there duly excepted." In the argument of counsel it is urged, as stated above, that the proper measure of damage was the rental value of the land, not the value of the crop at the time of its destruction. But one authority is cited by counsel in support of his contention, from 1 Sedg.Dam. § 184, under the heading, "Damages for Obstructing the Use of Land," where it is said: "When the owner of land is wrongfully prevented from occupying it, the measure of his damages is the value of the use of the land; that is, its rental value. So, where the plaintiff's farming land was wrongfully overflowed by the defendant, the measure of damages is the use of the land, not the value of the crops that might have been raised on it." Its want of applicability will be apparent when it is seen that this action was not for an eviction, or keeping the owner out of possession, but for the value of growing crops on land in the possession and occupancy of the plaintiff; and in case of keeping the owner out of possession it is said in a subsequent part of the same section: "But since the rent depends upon the nature of the land, that may be shown, and as the net profits realized from the use of it afford the best indication of the value of its use, they may be shown if they can be proved with reasonable certainty." Had counsel turned to section 191 of same volume, he would have found the following under the head of "Injury to Crop," where the author says, after citing Payne v. Steamship Co., 38 La.Ann. 164, and Rice v. Whitmore, 74 Cal. 619, 16 P. 501: "In cases such as the last...