Jones & Jones v. Cooley Lake Club
| Decision Date | 03 December 1906 |
| Parties | JONES & JONES, Respondents, v. COOLEY LAKE CLUB, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. Joshua W. Alexander, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sandusky & Sandusky, Lewis G. Hopkins and Martin E. Lawson for appellant.
(1) The testimony admitted by the court, over the objection of defendant, as to the cost of seed corn, and expense of hands and teams, and other expenses, in planting and plowing the corn, was not an element of damage and was not the correct measure of damage. Foncannon v. Kirksville, 88 Mo.App. 279; Tegeler et ux. v. Kansas City, 95 Mo.App. 162. (2) Instruction numbered 1, given for plaintiffs, is faulty. It authorized a recovery for injury to plaintiffs' land, on the ground that it was rendered "less valuable for farming purposes," and thereby announced an incorrect rule for measuring the damage. (3) That plaintiffs' attorney, three times in his closing argument, described defendant as a "club of millionaires"--there being no evidence on said subject. English v. Ricks (Tenn.), 95 S.W. 189; Prewitt-Spur Mfg. Co. v. Woodfall, 115 Tenn. 605, 90 S.W. 623.
Ralph Hughes and Simrall & Trimble for respondents.
(1) The evidence as to cost of seed, etc., was abandoned, and evidence, showing proper measure of damages, given. The record shows this. The instructions submitted the proper measure of damage to the jury. Under such circumstances, the evidence, though inadmissible, constitutes no ground for reversal. R. S. 1899, sec. 659; R. S. 1899, sec. 865; Burkholder v. Henderson, 78 Mo.App. 295; Parsons v. Mayfield, 73 Mo.App. 311. (2) Respondents' instruction numbered 1 is not erroneous. Schmitz v Railroad, 46 Mo.App. 393; Walker v. Kansas City, 99 Mo. 652; Carroll v. Railroad, 88 Mo 248; Barr et al. v. Armstrong, 56 Mo. 589; Fugate v. Miller, 109 Mo. 290; Noble v Blount, 77 Mo. 239. (3) The verdict is not excessive. Longan v. Weltmer, 180 Mo. 335; Perrette v. Kansas City, 162 Mo. 253; Hollenbeck v. Railroad, 141 Mo. 112. (4) There was no misconduct on the part of the attorneys in the case, either in stating the case or in argument. Norris v. Whyte, 158 Mo. 32; Norton v. Railroad, 40 Mo.App. 649; Reeder v. Studt, 12 Mo.App. 566; Skaggs v. Given, 29 Mo.App. 612; State v. Forsythe, 89 Mo. 672.
--Plaintiffs were proprietors of a farm of fifty-five acres near a body of water called Cooley Lake. The defendant is an organization known as "Cooley Lake Club." Plaintiffs' cause of action is founded on the claim that defendant partially dammed the outlet to the lake, causing it to rise to a higher level and overflow a portion of the land and to saturate the remainder with water, so that it prevented the use of the portion covered with water and so injured the productive quality of the remainder as to cause two crops of corn planted thereon to fall much short of what it should have been. There was a verdict and judgment for the plaintiffs in the trial court.
There was evidence which clearly tended to show that the act of defendant in throwing sacks of earth into the outlet of the lake raised that body of water to a higher level. It further showed that the bed of the lake was what is called "gumbo," a character of earth which holds water for great length of time. Many years ago, the surface of plaintiffs' land was composed of the same character of earth. But as the hill land near by has been opened up to cultivation a "loose and loamy" soil has washed down onto the land, making what witnesses call, two stratas; the gumbo underneath holding the water that crept up from the lake between the two, and thus thoroughly saturating the more porous soil on top.
In the spring of 1903, plaintiffs planted a crop of corn which was early destroyed by causes not charged to this defendant. They then planted a second crop and it produced poorly--only eight or ten bushels per acre and that of very indifferent quality. In the year 1904, they again planted corn and again had a like poor return as that of the preceding season. Plaintiffs introduced evidence tending to show the productiveness of the land and what number of bushels per acre it would have produced but for the lake keeping it wet, making all proper allowances for the seasons of 1903 and 1904 and based upon what it had produced and under what conditions of season, of planting and cultivation. Market prices of corn were shown and allowance made for the value of what the land actually produced in those seasons. In submitting the case, the plaintiffs asked and had given an instruction that, for that portion of the land on which no crop could be grown on account of water standing thereon, plaintiffs were entitled to a fair rental value of such portion. And for that part where crops were grown, they were entitled to the difference between the value of crops which could ordinarily have been grown had the dam not been constructed and the value of the crops actually grown.
In considering damage to a growing crop and damages resulting from being prevented from growing a crop at all, different considerations enter into a measurement of the damages. If one is prevented from using the land, the damage is its rental value; and that is properly stated in the foregoing instruction and it is what we have decided at this term in the cases of Knight v. Railway, 122 Mo.App. 38, and Stanley v. Railway. Proper distinction was made in the instruction referred to and we believe the correct rule for the measure of damages was stated where the injury is done while the crop is growing. The fact that, at least as to the crop of 1904, the land was put in such condition as to its productive quality, before the crop was planted would not, as to this case, under the facts...
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