Armour Fertilizer Works v. Crawford , 89 Fla. 152 ( 1925 )

Whitfield, J.

In an action to recover damages for injury to plaintiff’s land by mud, slush, dirt and dirty water and other kinds of debris thrown upon the land by reason of an overflow from a creek, resulting from defendant’s unlawfully causing mud, slush, dirt and dirty water to be cast and thrown into the creek in operating a phosphate mining plant, it appears that long before the defendant bought the mining plant, it had been operated by another company which had cast mud, &c., from the plant into the creek and that mud, &c., deposits had been cast upon plaintiffs ’ land before the defendant bought and begun operating the plant, and the charges given do not clearly instruct the jury that in determining the amount of the plaintiffs’ injury the jury should consider only the difference in the value of the land before and after the debris, &e., was shown to have been cast upon the land as a proximate result of the defendant’s unlawful acts, so as to exclude damages for debris, &c., that may have been cast upon plaintiffs’ land before the defendant bought and begun operating the mining plant. The amount of the verdict ($2,750.00) in view of all the testimony, indicates that the jury was not duly confined to considerations that make the defendant liable only for its own- tort and not for any part of its predecessor’s tort, if any. It is perhaps not practical to suggest a remittitur on this record, therefore the judgment should be and is reversed for a new trial. It is so ordered.

Taylor, C. J., and Ellis, Browne and Terrell, J. J., concur. West, J., dissents.