Adair v. Frisby ( 1961 )

Sam Robinson, Associate Justice.

This action grows out of damages caused by appellants in discharging salt water into a creek which flows through appellee’s property. Appellee was awarded damages in the sum of $2,375 and the only issue involved in this appeal is whether the judgment is excessive.

Appellants argue that according to the evidence the maximum amount that appellee has been damaged is $900. Appellee Frisby testified that he owned a tract of 177 acres, a part of which was damaged by the salt water; that before the damage occurred the whole tract was worth $17,000; that after the damage was done, the land was worth $10,000. Appellee also introduced evidence to the effect that the salt water had killed timber, causing it to fall and cjog a creek which flows across his land, thereby overflowing 54% acres of the property, reducing such acreage in value from $100 per acre down to $25 or $30 per acre. This claimed damage alone would amount to around $4,000, and moreover there is convincing evidence that it would cost more than $4,000 to clear the creek of the fallen timber. If this testimony is accepted as true, the damages amount to more than the amount of the judgment, on any theory of arriving at the damages recoverable.

On the other hand, there is evidence to the effect that the damages do not total more than the amount claimed by appellants, but the witnesses were before the trial court, and that court was in a much better position to determine the weight that should be given to the testimony of the witnesses than is this Court.

Affirmed.