St. Louis, Iron Mountain & Southern Railway Co. v. Hall , 71 Ark. 302 ( 1903 )

Hughes, J.,

(after stating the facts). Generally, “a witness-is never permitted to estimate the amount of the damage for the doing or not doing of a particular act which a party has sustained thereby,” This is the province of the jury, and a witness can not be allowed to- usurp it. Little Rock, M. R. & T. Ry. v. Haynes, 47 Ark. 501. The rule generally is that a witness should state facts, and the jury should find from the facts in evidence what the damages are, if any. St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 375; Sedgwick, Damages, § 1293; Railway Company v. Jones, 59 Ark. 110; Lawson, Expert and Opinion Evidence, p. 448.

The appellant contends that the plaintiff’s claim is within the statute of frauds. But the statute was not pleaded, and, had it been, could not have availed the defendant. “A third party can not, in a case where his own obligations growing out of the existence of the contract in question are concerned, deny the obligation of the contract upon the party who was to be charged thereby, or take any benefit of the protection upon it against himself.” Browne, Statute of Frauds, § 135.

What right had the plaintiff to sue ? He was a tenant at will. Though four months over one year had elapsed from the time he took possession of the land under the verbal permission of his wife, she, who owned the land, still permitted him to remain, in possession; at least, she had not interfered with him, or demanded possession of him. Had he planted a crop, he might have been tenant for the second year or tenant from year to year. But he had planted no crop. He had fenced the land, and was in possession. under the., original verbal permission of his wife, which had not been revoked. We think he had the right, being thus in possession, to cut the grass on the land.

If any permanent injury resulted to the freehold from the burning of the grass, the wife was damaged, and had the right to sue. But the wrongful destruction of the grass, which was uncut and standing on the land, was a damage to the plaintiff, for which he might maintain an action.

The measure of his damage-was the difference between the usable value of the land before and after the grass was burned down to the time of the trial.

“If a stranger cuts trees, the tenant at will shall have an action, as shall also the lessor, regard being had to their several losses. Co. Litt. 57 a, quoted in Hayward v. Sedgley, 31 Am. Dec. 64. See Foley v. Wyeth, 79 Am. Dec. 771.

“One having only .a possessory right to land may recover for an injury to his use and enjoyment of it, but not for a permanent injury to the property.” Seely v. Alden, 6 Pa. St. 302.

In Sedgwick on Damages, § 69, it is said: “Any one having an interest in land is liable to suffer injury in respect to his right; and accordingly, if his right, however limited it be, is injured, he may recover compensation equal to his individual loss. The general rule may be said to be that the extent of the injury to the plaintiff’s proprietary right, whatever it may be, furnishes the measure of damages. The owner of a freehold may recover for an injury which permanently depreciates his property, while a tenant, or one having only a possessory right, may recover for an injury to the use and enjoyment of that right.”

For .the error in the admission of the improper opinion evidence in regard to plaintiff’s damages above referred to, the judgment is reversed, and the capse is remanded for a new trial.

Battle, J., did not participate.