Hart v. Chicago & Northwestern Railway Company
| Decision Date | 05 March 1909 |
| Docket Number | 15,495 |
| Citation | 120 N.W. 176,83 Neb. 652 |
| Parties | JUNE W. HART, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Affirmed.
AFFIRMED.
B. T White, C. C. Wright and B. H Dunham, for appellant.
M. F Harrington and R. M. Johnson, contra.
Sparks from defendant's engine started a fire which burnt over a quarter-section of land owned by plaintiff in Holt county, and she brought this suit to recover resulting damages in the sum of $ 2,000 to her land, grass and a ten-acre grove of trees. The answer was in effect a general denial. In open court defendant admitted responsibility for the fire. The amount of damages was the only issue tried, and the jury returned a verdict in favor of plaintiff for $ 350. From a judgment in her favor for that sum defendant appeals.
The trial court instructed the jury to the effect that the measure of damages to the trees was the value thereof "with reference to the land in the situation in which they stood prior to the damage, less their value for practical purposes afterwards." Defendant assails this instruction on the ground that it does not correctly state the measure of damages. It is also criticized on the ground that it authorizes a double recovery. Consideration of this instruction is unnecessary. When given, there was no exception to it in the district court. It was therefore satisfactory to defendant at the time the case was submitted to the jury, and cannot be urged now as a ground for setting aside an adverse finding.
Complaint is also made of the failure of the trial court to instruct the jury that the measure of damages was the difference in the value of the land before and after the fire, in the event of a finding that the trees were of no value except to increase the selling price or value of the farm. Defendant requested a series of instructions applicable to the rule stated, which the trial court declined to give. The doctrine invoked by defendant and announced in the rejected instructions is not without support in reason and is an established rule in the courts of many jurisdictions, but the instructions requested on this issue and refused by the trial court are not in harmony with the former holdings of this court. Fremont, E. & M. V. R. Co. v. Crum, 30 Neb. 70, 46 N.W. 217; Kansas City & O. R. Co. v. Rogers, 48 Neb. 653, 67 N.W. 602; Missouri P. R. Co. v. Tipton, 61 Neb. 49, 84 N.W. 416; Alberts v. Husenetter, 77 Neb. 699, 110 N.W. 657. The rule was recently stated as follows: "The measure of damages to growing trees, having no value for purposes of transplanting, is the value of the trees with reference to the land in the situation in which they stood prior to the damage, less their value for practical purposes afterwards." Union P. R. Co. v. Murphy, 76 Neb. 545, 107 N.W. 757. There is authority for holding that this rule is general in its application to trees destroyed by fire. In Missouri P. R. Co. v. Tipton, 61 Neb. 49, 84 N.W. 416, this court, in an opinion by Judge HOLCOMB, said: "We think this court is committed to the doctrine that a recovery may be had under evidence showing the value of fruit trees, shade or ornamental trees, or young growing timber, as they stood as live, growing trees before the injury complained of, and their value, if any, immediately thereafter."
The doctrine applies to artificial groves as well as to natural timber. Kansas City & O. R. Co. v. Rogers, supra. Defendant insists, however, that plaintiff's trees were cottonwood of no value except to "increase the selling price of the land and its value as a farm," and that there was no competent evidence of the value of the timber for any other purpose. This is urged as a distinguishing feature which required...
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