Tretter v. Chicago Great Western Ry. Co.

• Decision Date: 13 May 1910
• Citation: 126 N.W. 339,147 Iowa 375
• Parties: JOSEPH TRETTER v. CHICAGO GREAT WESTERN RY. CO., Appellant
• Court: Iowa Supreme Court

126 N.W. 339

147 Iowa 375

JOSEPH TRETTER v. CHICAGO GREAT WESTERN RY. CO., Appellant

Supreme Court of Iowa

May 13, 1910

Appeal from Marshall District Court.--HON. J. M. PARKER, Judge.

ACTION for damages resulted in judgment against defendant, from which it appeals.

Reversed.

Carr Carr & Evans and Carney & Carney, for appellant.

Bradford & Johnson, for appellee.

OPINION

LADD, J.

The two lots belonging to plaintiff and containing about five acres of land are bounded on the southeast by the right of way of the Chicago & Northwestern Railway Company, parallel with which and immediately beyond is the right of way of the Chicago Great Western Railway Company. These lots are lower than the land surrounding them, and the water gathering on them flows through a natural depression from the northwest to the southeast, passing therefrom beneath a bridge sixteen or eighteen feet long in the roadbed of the Chicago & Northwestern Railway Company, and prior to July, 1907, under a similar bridge in the roadbed of the Chicago Great Western Railway Company. About that time a car load of earth was dumped into the way beneath the latter bridge, obstructing the passage of water, to plaintiff's injury. Later on seven or eight gravel cars were emptied at the same place filling the space beneath the bridge, and this so obstructed the passage of water that upon a heavy fall of rain in the fore part of August the water was thrown back on plaintiff's land where it stood for several days, destroying about four hundred heads of cabbage, three hundred tomato plants, and about two thirds of thirteen thousand celery plants. The cabbages were mature. The celery appears to have been ready for bleaching, but whether this process is to be regarded as essential to maturity or merely as a preparation for market we are not advised. The tomato vines, though large, had no tomatoes on.

Recovery for the value of these, and not for injury to the land, was demanded. Their value in the field or else on the market with deductions of the reasonable cost of maturing and marketing was the correct measure of damages. Blunck v. Railway, 142 Iowa 146. See, also, Smith v. Railway, 38 Iowa 518, and McMahon v. Dubuque, 107 Iowa 62, 77 N.W. 517. In Drake v. Railway, 63 Iowa 302, relied on by appellant, permanent damages to the premises were claimed in connection with the loss of crop, and this accounts for the approval of a different rule in that case. The same is true of Harvey v. Railway, 129 Iowa 465. Where damage to the crop only is claimed, and not to the soil, either because of injury to it in connection with a permanent or perennial growth thereon, there is no good reason for not estimating the damage to such crop directly, rather than indirectly, by estimating the values of land with it before and after the injury. Necessarily such difference is the difference between the values of the growing crops thereon before and after the injury, and the same result is reached. The circumstance that growing crops ordinarily are regarded as part of the realty is not controlling. These may be disposed of apart from the land ( Strawhacker v. Ives, 114 Iowa 661, 87 N.W. 669), and in measuring damages thereto the value of the land is not involved. The cause was tried on this theory, and the objections to the evidence because not presenting the proper measure of damages were rightly overruled.

II. It is contended, however, that, even though the measure of damages be as stated, the instructions did not so inform the jury. In the ninth instruction the court stated that the action was "to recover, not for damages done to his land, but for damages done to his celery, cabbage, and tomatoes." The tenth instruction may be set out "In arriving at the amount you find the plaintiff entitled to recover, you should take into consideration the labor, care, and attention and expense you find he bestowed upon his celery, cabbage, and tomatoes up to the time of the loss; or, in other words, an element to be considered by you is the cost of production. You may consider the market value of said crop in the field or in the market place upon the streets and how near they were ready for the market in either place, or what further was necessary to be done to make them ready for the market in either place. The main thing is to take into consideration everything in the evidence that will aid you in arriving at a fair and just verdict. To whatever amount you find add interest at the rate of six percent from time of loss." This was all that was said bearing on the measure of damages, save a remark in the eleventh instruction "that, in ascertaining and fixing the amount of plaintiff's damage or loss, consider all the evidence upon that point, and also consider and weigh the opinion of witnesses who have testified as to the value of such crops and the cost of producing them." The criticisms of the instruction quoted are (1) that it assumes that plaintiff will recover; (2) it allows the cost of production, though no evidence thereof was introduced; (3) it allows recovery for market value without requiring deductions for cost of maturing and marketing; and (4...