Rowe v. Chi. & N. W. Ry. Co.
| Decision Date | 19 May 1897 |
| Citation | 71 N.W. 409,102 Iowa 286 |
| Court | Iowa Supreme Court |
| Parties | ROWE v. CHICAGO & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Mahaska county; D. Ryan, Judge.
The plaintiff claims damages for the destruction of an orchard, some grass, and a fence by fire, which he alleges was caused by the defendant in carelessly and negligently allowing fire to escape from one of its locomotive engines on October 11, 1892. Defendant denies all of the allegations of the petition. The cause was tried to the court and a jury, and a verdict returned for plaintiff for $1,740. Defendant appeals. Affirmed.Hubbard & Dawley, for appellant.
L. C. Blanchard, for appellee.
1. The orchard covered about 19 acres of ground, and over 900 trees were burned or destroyed. These consisted of 253 mature trees, 427 trees commencing to bear, and 214 seedlings. Besides, 24 trees were damaged; also, some cherry trees and one peach tree. The court instructed the jury that, as to the orchard, the measure of plaintiff's damage would be the “difference between the fair market value of the plaintiff's farm of 160 acres, upon which said orchard was, not including the grass or fences injured or destroyed, immediately before the fire, and its fair market value immediately after the fire, as injuriously affected by said fire.” The rule contended for by the defendant was presented in instruction 2 asked by it and refused. It was as follows: “The measure of damages in this case is the difference in value of the orchard just before and its value just after the fire, as an orchard.” The question was also raised by objections to evidence. We think the rule announced in the instruction given by the court is correct, and it is supported by the great weight of authority. It is impossible to separate the orchard from the land in estimating the damages. Appellant's contention results in fixing the value of each tree destroyed or damaged by the fire, and the aggregate of such values would be the measure of plaintiff's recovery. Such a rule may well be held applicable to the destruction by fire of buildings, fences, and other improvements, which may at once be replaced, where the exact cost of restoring the property destroyed is capable of definite ascertainment, and where there is no damage to the realty itself. Here was a fire which destroyed several hundred apple trees. The trees which were left unburned were not in a body, but were in irregular patches, and disconnected. It needs no argument to establish the fact that the trees left unharmed, situated as they were, would not be worth as much to the farm as if they were left in a body together. One purchasing a farm with such an orchard on it would make a material deduction in its value on account of the condition in which the orchard was left. In no proper sense can it be said that in such a case can the value of the trees alone furnish any proper measure of the damages. The injury done is of a permanent character. The orchard cannot be restored to its exact condition before the fire, and it is uncertain whether it can in many years be approximately restored to its former condition. Surely the injury will continue until remedied by the labor of man, and in such a sense, at least, it is permanent. Hale, Dam. 357.
Appellant relies on Graessle v. Carpenter, 70 Iowa, 166, 30 N. W. 392. We do not regard that case as controlling this. That decision was grounded upon the thought that “it was not shown that the acts complained of were of such nature as to permanently injure the real estate, or that the injuries cannot be repaired and the property restored to its condition before the trespass.” We do not wish to be understood as approving the rule laid down in that case as applicable to damages to trees and shrubs; besides, the opinion was not unanimous. In the case at bar the injury is permanent. In Greenfield v. Railway Co., 83 Iowa, 277, 49 N. W. 97, in speaking of growing timber kept for growth, this court said: “It was a part of the realty, and its loss affected the value of the realty.” In that case the only question discussed was whether the measure of damages was the difference in the value of the timber land before and after the fire, and the court said: “It is manifest that the plaintiff suffered no less damage than the difference in the value of the timber land before and after the fire.” In Brooks v. Railway Co., 73 Iowa, 182, 34 N. W. 807, wherein recovery was sought for a locust grove burned, the court sustained an instruction to the effect the plaintiff was entitled to recover the value of the grove to the farm. The farm consisted of 120 acres, of which 25 acres had been cut off by the...
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