Lommeland v. St. Paul, Minneapolis & Manitoba Ry. Co.

• Decision Date: 12 July 1886
• Citation: 35 Minn. 412
• Parties: ANDREW A. LOMMELAND <I>vs.</I> ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.
• Court: Minnesota Supreme Court

35 Minn. 412

ANDREW A. LOMMELANDvs.

ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.

Supreme Court of Minnesota.

July 12, 1886.

Appeal by defendant from a judgment of the district court for Becker county, where the action was tried before Stearns, J., and a jury.

R. B. Galusha and J. Kling, for appellant.

O. Mosness, for respondent.

VANDERBURGH, J.

This action is brought to recover damages for injuries to plaintiff's growing crops by the flowing of his land, alleged to have been caused by ditches dug by defendant to drain its road-bed. In such cases the general rule appears to be that the damages are to be estimated as of the time of the injury, and the measure of damages is compensation for the value of the crops in the condition they are in at that time. 3 Suth. Dam. 381, 382; Richardson v. Northrup, 66 Barb. 85; Folsom v. Apple River, etc., Co., 41 Wis. 602, 609. In applying this rule a considerable latitude of inquiry is permissible from the nature of the case. The estimate must be based largely upon the condition, stage of growth, and promise of the grain, and the capacity of the land to produce crops; and, in addition to the opinions of witnesses qualified to speak in reference to the extent of the injury and of the value of the growing crop in its then condition, we think it would be proper to receive evidence of the average product or yield of like crops upon the same and other lands in the neighborhood, under like circumstances and conditions, and also the average market value of such grain, within reasonable limitations as to time, and the expense of harvesting and marketing, to be submitted to the jury under proper instructions by the court. If the estimates are extravagant, the evidence may be sifted upon cross-examination and controverted by witnesses. Folsom v. Apple River, etc., Co., supra; Whitbeck v. N. Y. Cent. R. Co., 36 Barb. 644; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 327; Allison v. Chandler, 11 Mich. 542; Williams v. Currie, 1 C. B. 841. The court therefore properly admitted evidence tending to prove the average amount of wheat and oats per acre usually raised on these or similar lands in the vicinity during the years in question. This disposes of the appellant's first and second assignments of error.

The third is that plaintiff was permitted to inquire as to the market value of wheat and oats in the fall and winter of 1881. We think the testimony was admissible. Damages were claimed for 1881 and 1882. Evidence, in such cases, may properly be received of the general or average market price at the place, and during the usual season, of marketing the same crop, if, at the time of trial, it can be shown. All estimates must include and make allowance for the risk to the growing crop, but may also include the reasonable probability of its coming to maturity, and its value when so matured, and that it will be of the average value of such crops; and, where the evidence develops with reasonable certainty the average price of the matured grain for that year during the marketing season, it becomes an element which the jury may consider...