Graessle v. Carpenter , 70 Iowa 166 ( 1886 )

ReoK, J.

-I. The defendant, wbo owns property adjacent to the lot of plaintiff upon which the trespasses were committed, entered thereon without plaintiff’s consent, and laid water-pipes through it to his own premises. Injury resulted therefrom to the fence, walks, trees, shrubbery and house of plaintiff. To recover therefor plaintiff brings this suit.

II. The court below gave to the jury an instruction in the following language: “ Sixth. If you find for the plaintiff, the measure of her damage is the difference in value between the premises as they were immediately before defendant entered upon them to do the acts complained of, and the value of the premises after the trench was cut and pipe laid; and the value of the premises after the. trench was cut and the pipe laid must be considered in the light of the consequences resulting directly thereform, such as injury to the house, fences, grounds, trees and shrubbery; providing, such injury to house, fences, grounds, trees, shrubbery was caused directly and approximately by the acts complained of; but defendant would not in any event be liable for remote or consequential damages resulting from his acts, hut only for the direct and proximate results; nor is defendant liable for treble damages, or exemplary damages, being the difference in value, if any, of the premises as aforesaid.”

Evidence tending to show plaintiff’s damage in accord with the doctrine of this instruction was admitted, but it was not shown that the acts complained of were of such a nature as to permanently injure the real estate, or that the injuries cannot be repaired, and the property restored to its condition before the trespass. In our opinion the instruction is erroneous in presenting a rule for the measure of damages not recognized by the law as applicable to the facts of -the case. For an injury to real property unaccompanied by malice or oppression on the part of the wrong-doer, and in the absence of a special remedy or a special liability created by statute, the law gives to the injured party compensation, and nothing more. Hence, that rule for determining the measure of damages which will give the plaintiff just and full compensation is approved by the law. In the case before us, the familiar and simple rule applicable to such cases would perfectly attain that end. That rule is this: the plaintiff may recover as damage the sum which, expended for the purpose, would put the property in as good condition as it was in before the injury, with the additional sums which would compensate the plaintiff for the use and enjoyment of the property, should he be deprived thereof by the injury, and the value of such property, as trees, buildings, and the like, which have been wholly destroyed, and cannot be restored to the condition they were in before the injury. See Freeland v. City of Muscatine, 9 Iowa, 461; Striegel v. Moore, 55 Id., 88; Chamberlain v. Collinson, 45 Id., 429.

This rule, it seems to us, complies more nearly with the rule of the law limiting recovery in such cases to a sum that will be fully compensatory for the wrong done, and may be applied more readily than any rule based upon the values of the property before and after the injury, which are necessarily uncertain, and in a degree changeable in character. Besides this, we have observed that values are very difficult to determine, for the reason that their estimation rests almost wholly upon the opinion of witnesses, based, usually or often, upon speculation or fancy. One of the items of damages in this case was the injury to the building situated upon plaintiff’s lot. A mechanic or builder could, with a great degree of accuracy, estimate the cost of restoring the building to its condition before the injury. But, were such an injury considered as an element in estimating the diminution of the value of the whole property, there would be great uncertainty in the result. The value of real property before and after an appropriation of a part thereof by a railroad company for occupancy of the track, under decisions of the court, determines the measure of the damage of the land-owner. This rule is based upon the consideration that a part of a tract of land, usually a strip, is primarily occupied, and the value of the whole is affected by the occupation. Therefore, in order to justly compensate the land-owner, the diminution of the value of the whole tract, caused by taking a part, must be considered.

The cases decided by this court which are cited by plaintiff’s counsel are of this character, with one exception, namely: Drake v. Chicago, R. I. & P. R’y Co., 68 Iowa, 302. In this case it is held that evidence was not properly admitted which showed that the land, had it not been flooded, — the injury complained of, — -would have produced as much corn as was raised on other land. The view is expressed in the opinion that the damages should have been estimated by considering the effect of the injury upon the value of the land. It is doubtless supported by the consideration that the damages of the plaintiff were not properly measured by the estimated value of one crop. Injury to other crops, permanent damage, and inconvenience, it is said in the opinion, should be considered in determining the measure of plaintiff’s recovery. These would all affect the value of the land, which, therefore, should be considered in determining the measure of plaintiff’s damage.

We reach the conclusion that the circuit court erred in giving the instruction above quoted, and in admitting evidence of the comparative values of the property.

REVERSED.