Ross & Ross v. St. Louis, Iron Mountain & Southern Railway Co. , 120 Ark. 264 ( 1915 )

Smith, J.,

(after stating the facts). The court below did not consider the question of the measure of damages, as under its view there was no liability. But the right to recover damages, if such a right exists, can not be defeated because appellants sought to apply an erroneous measure. We think this cause should have been submitted to the jury upon the theory that appellee had used appellants’ property and had damaged it in its use. The measure of ¡such damages, however, would not be the depreciated value of the property, but would be the cost of restoring the property to its former .condition, together with compensation for the usable value during the time appellants were deprived of its use, and if the proof upon a trial .anew does not show that appellants were deprived of the use of the pool, then 'their recovery should be measured by the cost of restoring the pool to its condition before the cotton was placed in it. Cavanagh v. Durgin, 156 Mass. 466.

It is now urged by appellee that no recovery should be permitted in this case because appellants did not clear out the pool and incurred no expense on that account as they sold the entire property before the pool had been cleared out and that any expense in that connection was incurred .after the sale of the property by them. But we do not think that appellants’ right of recovery can be defeated on that account. They were entitled to compensation for the use of the pool whether they cleaned it out or not, and their right of recovery can not be defeated because they did not incur this expense. According to the evidence of appellants they made .a deduction in the purchase price of the property which far exceeded the cost of repairs, ¡but they would have the right of recovery whether this was true or not, and the judgment of the court ¡below will, therefore, he reversed and the cause remanded for a new trial.