Missouri Pac. R. Co. v. Benham, 4-4098.

• Decision Date: 20 January 1936
• Docket Number: No. 4-4098.,4-4098.
• Citation: 89 S.W.2d 928
• Parties: MISSOURI PAC. R. CO. et al. v. BENHAM.
• Court: Arkansas Supreme Court

89 S.W.2d 928

MISSOURI PAC. R. CO. et al. v. BENHAM.

No. 4-4098.

Supreme Court of Arkansas.

January 20, 1936.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by W. A. Benham against the Missouri Pacific Railroad Company, L. W. Baldwin, trustee, and others. From an adverse judgment, the defendants appeal.

Affirmed in part, and reversed and dismissed in part.

Thomas B. Pryor and W. L. Curtis, both of Fort Smith, for appellants.

Rains & Rains, of Van Buren, for appellee.

BUTLER, Justice.

Appeal from a verdict and judgment in favor of plaintiff against the defendant in an action for damages for the destruction of a meadow and pasture by fire and for personal injuries to the plaintiff suffered in an attempt to extinguish the fire.

The evidence, most favorably stated for the appellee relating to his first cause of action, is that he was the tenant of 80 acres of land on a year to year tenancy, which was used as a pasture and meadow. The fire was occasioned by sparks from a passing locomotive of the defendant company which ignited and destroyed the grass standing on the meadow and that part of the land used for pasture. The fire occurred on July 24, 1934. A part of the 80-acre tract was devoted to meadow which would produce from 14 to 15 tons of hay. This, when mowed and baled, was worth approximately $12 per ton. On that part of the tract devoted to pasturage, the plaintiff kept from 20 to 28 head of cattle. The pasturage was of quantity and quality sufficient to sustain the cattle during the fall and winter. Then, after an interval of about a month in the late winter or early spring, the sustenance was sufficient for the cattle during the spring and summer months. In other words, the pasturage was sufficient to sustain from 20 to 28 head of cattle during the entire year with the exception of about one month.

In addition to the evidence related above, there was evidence introduced and allowed to go to the jury, over the objection and exceptions of the defendant, to the effect that the rental value of the 80 acres of land was worth from two to three hundred dollars per year according to the estimate of the several witnesses who testified on this subject and who were farmers residing in the vicinity. It was further in evidence that the meadow was rendered valueless for that year and the pasturage was not restored so as to have any material value during the remainder of the year.

On request of the defendant, the trial court, in effect, gave an instruction to the jury as a measure of damage the usable value of the premises from the date of the fire until the land was restored to its condition immediately before its destruction.

The jury found, on this cause of action, for the plaintiff in the sum of $225. It is insisted by the defendant that there was no competent proof offered at the trial based upon the rule for the measure of damages given by the court upon which to predicate the damages awarded by the jury, and that, in any event, the sum awarded is excessive.

It is difficult, if not impossible, to formulate a general rule applicable to all cases by which the measure of damage is defined for destruction of perennial crops, whether natural or artificial, because of so many and varying conditions which may affect the result, this way or that. This court has experienced that difficulty. Because of the character of the meadow involved, the court, in St. Louis & S. F. Ry. Co. v. Jones, 59 Ark. 105, 26 S.W. 595, 597, held that for its destruction by fire the damage was to be measured "by the cost of re-seeding it and its rental value from the time of its destruction until it is restored." The court had occasion to examine the same question in St. Louis, I. M. & So. Ry. Co. v. Hall, 71 Ark. 302, 74 S.W. 293, where it held that, under the circumstances of that case the measure of damage to the meadow destroyed by fire was "the difference between the usable value of the land before and after the grass was burned down to the time of trial." In Kansas City Southern Ry. Co. v. Wilson, 119 Ark. 143, 171 S.W. 484, 485, it was held that the measure of damage for burning of a parcel of land used as a pasture "would be the reasonable rental or usable value of that pasture for the remainder of that season."

Tested by the authority of these cases, the instruction requested and given for the defendant in the case at bar was not an accurate and complete declaration of law. For this reason, however, the defendant cannot complain. From our own cases and the great weight of authority, the correct rule for the measurement of damages in ordinary cases for the destruction of grass or other perennial plants used on lands for meadow or pasture seems to be this: The damage recoverable is the value of the grass or crop at the time of its destruction where no permanent injury is suffered to the soil by the destruction of the roots of the grass or plants. Atlanta & B. Air Line Ry. v. Brown, an Alabama case, reported in 158 Ala. 607, 48 So. 73; Risse v. Collins, 12 Idaho, 689, 87 P. 1006; Evans v. Highland, etc., Co., 27 Utah, 475, 76 P. 1135; Byrne v. Minneapolis, etc., Co., 38 Minn. 212, 36 N.W. 339, 8 Am.St.Rep. 668; International & G. N. R. Co. v. Saul, 2 Willson, Civ.Cas. Ct.App. § 698, page 612; Thompson v. Chicago, B. & Q. R. Co., 84 Neb. 482, 121 N.W. 447, 23 L.R.A.(N.S.) 310.

In arriving at the damage for the loss and destruction of meadows and pasture, the difficulty seems to arise not so much in the formulation of the rule, as in the character of evidence admissible to prove the loss. But it would seem that any evidence which would tend to shed light upon this question is competent. The evidence relating to the rental value of the...