Barrick v. . Schifferdecker

Finch, J. The principal question raised on this appeal relates to the measure of damages. The parties were adjoining owners, and the defendant using her building for the storage of ice, caused injury to the plaintiffs’ dwelling-house. The melting of the ice occasioned a dampness which struck through the walls of the dwelling, and, beyond an injury to the structure, made it so unsafe and unfit for occupation as to have seriously diminished its rental value. The plaintiff brought an equitable action so far as the relief demanded was concerned. She asked for an injunction to prevent • the continuance of the nuisance and for damages. Hnder the defendant’s-objection and exception she was allowed to prove the loss of rental value to the time of the trial, and then the cost of repairing the injury done and putting the dwelling into a condition to be unaffected by the proximity of the ice, and in addition to that, the permanent depreciation. Ho instructions were given to the jury limiting or guiding their action upon this evidence, but they were left to determine the damages from the proof given, and in their own way. They rendered a *56 verdict for the plaintiff of $1,000. The court refused to grant an injunction and gave no equitable relief, but allowed the judgment for damages to stand. That judgment must be ' reversed for the error in admitting evidence relating to the damages. Although the complaint demanded equitable relief, no case for it was made, and none awarded. The injury complained of was by no means permanent in its character, and resulted from the use of the defendant’s building, as an ice-house and the melting of the ice therein. She might elect to discontinue that use, and if equitable relief' had been granted would have had the option to have discontinued the nuisance and so to have prevented a permanent depreciation of value, or, continuing it, to obtain the right so to do by paying the resulting depreciation, as the court might determine. But on this trial the depreciation was proved without an award of equitable relief, and double damages may have been the consequence of the proof. The rental value to the time of the trial, and in addition the sum necessary to repair plaintiffs’ house and put it in a condition which would prevent future injury from the same cause were first shown, and their aggregate would cover the total damages possible to be sustained. When to that, permanent depreciation is added, damages are given for what cannot occur. The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other. We cannot know how the jury arrived at their verdict, and it may have been influenced by the erroneous admission of evidence, and so there must be a new trial upon which, according as the court shall find the facts, either the legal or equitable rule of damages must prevail, but not both. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed.