Williams v. Missouri Furnace Co.

• Decision Date: 12 December 1882
• Citation: 13 Mo.App. 70
• Parties: HERRO WILLIAMS, Respondent, v. MISSOURI FURNACE COMPANY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 70

HERRO WILLIAMS, Respondent,

v.MISSOURI FURNACE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 12, 1882.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

HITCHCOCK, LUBKE & PLAYER, for the appellant: Plaintiff alleged no trespass upon his lot. His action is solely for damages for removal of lateral support. He had no right of support for his buildings, or the pressure thereof. He claimed no easement. His buildings, having been erected within ten years before his supposed right of action accrued, he was not entitled to any easement of support therefor.-- Charless v. Rankin, 22 Mo. 566; Busby v. Holthaus, 46 Mo. 161; Gillmore v. Driscoll, 122 Mass. 199. The measure of plaintiff's damages was the value of the earth which fell away from the line of his lot.-- Gillmore v. Driscoll, 122 Mass. 199. The instruction given by the court, of its own motion, was erroneous, in that it carried the claim for damages beyond the date of the writ in this case. Plaintiff was bound in law to stop the accruing of damages, by repairing the injuries himself.-- Douglass v. Stephens, 18 Mo. 365.

O. G. HESS and GOTTSCHALK & BANTZ, for the respondent: The measure of damages for injuries to real estate are the diminution of the salable value of the land injured. Chouteau v. St. Louis, 8 Mo. App. 48; House v. Hammond, 39 Barb. 89; Hasher v. Railroad Co., 60 Mo. 304; Tate v. Railroad Co., 64 Mo. 49.

THOMPSON, J., delivered the opinion of the court.

The plaintiff and defendant were adjoining proprietors of real estate. The defendant, in excavating on its own lot for sand, dug so near the plaintiff's lot as to deprive the ground of its natural lateral support, and some of it fell into the excavation. For this the plaintiff brought this action, and had a verdict and judgment for $600. The questions which we are invited to consider relate to the measure of damages.

1. Under this head the following instruction is complained of: “The court instructs the jury, that if they find for the plaintiff they will award him such damages as they may believe from the evidence his premises have been diminished in value by the injury received, in consequence of the sliding and falling of his soil into the excavation, but in no case to exceed the sum of $2,000.””””

This instruction is complained of on the ground that the court should have directed the jury that the measure of the plaintiff's damages was the value of the earth which fell away from the line of the plaintiff's lot. It is believed that there is no modern authority for such a rule. Such a rule would be clearly against reason. It would afford no substantial compensation to one who has suffered a substantial injury. There is no substance more plentiful than the soil on which we walk, and it cannot be shown that a quantity of loose dirt has any substantial value. It may, indeed, have a very considerable value to a proprietor when resting in its natural state in a lot of ground owned by him; and this, it is believed, is the value which is contemplated by the old rule in question. But the enunciation to a jury of this rule, without qualification, would be misleading, for it would induce them to render no more than nominal damages. The true rule as to the measure of damages for permanent injuries to land, as enunciated by the supreme court in Pinney v. Berry (61 Mo. 359, 367), and by this court in Chouteau v. St. Louis (8 Mo. App. 48), is, that it is the difference between the value of the land immediately before the injury accrued and the like value after the injury is complete. The instruction complained of substantially embodied this idea.

We do not gather the force of the criticism that this instruction was erroneous because it had the effect of telling the jury that the measure of the plaintiff's damages was the diminution of the value of the entire property, caused by the injury. His property consisted of but one lot, and we do not see how this can be severed in considering the damage which it has sustained, unless we fall back upon the old idea already stated, that the measure of damages is the value of the dirt which fell away from the plaintiff's lot and upon the defendant's lot, which dirt the defendant consequently acquired tortiously from the plaintiff. The case of Gillmore v. Driscoll (122 Mass. 199) is not, as we read it, authority for such a position. There the court gave “damages occasioned to the plaintiff by loss of, and injury to, her soil alone, caused by the acts of the defendant, amounting to $95.” It seems to us that a distinction between an injury to the plaintiff's soil and an injury to his lot would be quite too refined for the purposes of practical justice; and the same, we think, may be said of a distinction between an injury to the plaintiff's soil and an injury to his premises caused by the falling of his soil into his neighbor's pit. It is a general rule that, for permanent injuries to property, whether real or personal, the plaintiff is entitled to recover the depreciation in value caused by the injury. Shelbyville, etc., R. Co. v. Lewark, 4 Ind. 471; Ryan v. Lewis, 3 Hun, 429; Easterbrook v. Erie R. Co., 51 Barb. 94; Cleland v. Thornton, 43 Cal. 437; Dixon v. Baker, 65 Ill. 518; Jutte v. Hughs, 67 N. Y. 267; Hughs v. Quentin, 8 Car. & P. 703; Streett v. Laumier, 34 Mo. 469; Gilbert v. Kennedy, 22 Mich. 117. This rule is substantially embodied in the instruction we are considering.

The same consideration, we think, disposes of the objection that the court erred in admitting evidence as to the general decrease in value of the plaintiff's entire premises caused by this injury. We think that in estimating the difference in value of the land before and after the injury, the value of the entire lot and the improvements might as well be taken as the basis as the value of the ground alone; for although the injury was not to the buildings, but to the ground, yet a proper estimate would produce the same result upon either basis.

2. The court of its own motion instructed the jury as follows: “You are also instructed that the plaintiff cannot recover for any damage which his premises may have sustained or suffered since the commencement of this suit, May 22, 1880, except such damage as the jury may believe from the evidence to have been the direct and natural result of the acts of the defendant complained of in the petition.” The court also refused an instruction, requested by the defendant, that the plaintiff could not recover for any damage which his premises may have suffered since the commencement of this suit. We are of opinion that these rulings of the court were not erroneous. We understand it...