Lentz v. Carnegie Bros.

Opinion, Mb. Justice Williams : The questions raised by this appeal are substantially those which were considered and decided in the recent case of Robb v. Carnegie, ante, 324, in which an opinion was filed on the first day of the present term. The conclusions reached in that case require us to sustain the second, fifth, sixth, eighth, and fourteenth assignments of error, all of which relate to the measure of damages. The plaintiff is the owner of a farm containing seventy-three acres and lying on both sides of Brush creek. It is mainly upland. The flat along the stream is quite narrow, and covers not more than seven or eight acres, including the bed of the stream. The defendants own and operate an extensive coke works, situated on the bank of the stream a little more than one mile above the plaintiff’s farm, at which the slack is collected from several coal mines in the region, and used for making coke. The plaintiff alleges that the defendants habitually [626] put the ashes from their ovens and their refuse slate and slack into the stream, using it as a dumping ground, and depending on the current and the floods to carry it away. By this means the water is polluted, and rendered unfit for use; the channel is choked up, the water is crowded out of its original bed, and the flat cut up and covered with a deposit of ashes, slate, and refuse from the coke works, so that it is unfit for cultivation. For the injury thus sustained, as the result of the unlawful use made of the stream by the defendants, the plaintiff seeks to recover in this action. The defendants reply that the pollution of the stream began before their works were erected, as the result of mining operations on Brush creek and its tributaries, which were in progress more than twenty years before this suit was brought. They say that their own works were erected in 1871, and have been in operation since that time without objection or complaint until now; that the condition of the stream and the plaintiff’s land has undergone no material change for many years, and if their present condition is to any extent chargeable to the acts of defendants or their employees, no recovery can be had in this case except for injury done within six years before suit was brought. The questions thus presented to the jury were, in the first place: What was the condition of the stream and the plaintiff’s flat land six years before the writ was issued? Was the water then polluted? Was the channel choked with refuse and the flat cut by the water, and covered with the deposit complained of ? Having ascertained what the situation then was, they were next to inquire whether the situation had been made worse during the six years. If so, in what respect, and to what extent ? In this way they would be able to reach a correct conclusion as to the extent of the injury done the plaintiff, for which he could recover in this action. The method adopted on the trial was quite different. The plaintiff >vas permitted to show, and the jury was instructed to consider, what the plaintiff’s farm would be worth as a whole, including the buildings and improvements, with the creek and the flat land in the original condition as it was before the work of pollution began, and what it was now worth, with the stream and the flat in their present condition; so that the difference between these estimates became the measure of damages. [627] We held in Robb v. Carnegie, supra, that this mode of estimating damages, which is properly applicable to cases where an entry is made under the power of eminent domain, is not ordinarily applicable to actions of trespass. It is not necessary to repeat the reasons which were given in support of that conclusion. It is enough to say that we adhere to them. In case of a taking, the natural inquiry is, how is that which is left affected by the taking? Where nothing is taken, but an injurious trespass is alleged, the question is, what will be the cost of restoring the thing injured to its former condition ? If the cost of restoration will equal or exceed the value of the thing' injured, then the value becomes the measure of the plaintiff’s damages. But there is still another reason why the measure of damages adopted in the court below was inapplicable to this ease. The defendants had pleaded the statute of limitations, and the inquiry was thereby limited to six years. The comparison which the testimony placed before the jury carried them back to a time when the stream was not polluted, and the slate and slack had not been deposited on the plaintiff’s land. It brought to their notice, not the injury done in six years, but the changes made from the beginning of operations on Brush creek, which was nearly or quite a quarter of a century before the trial. While the learned judge told the jury that the plaintiff could not recover for an injury sustained more than six years before his action was begun, he permitted testimony to be given which brought the entire change in the situation of the plaintiff’s flat land to their attention, and which contrasted its value, if in its original condition, with its value in its present condition. This evidence was admitted after objection, and for the purpose of providing the jury with a measure of damages in this case. The seventh assignment of error is also sustained. The witness had put a value upon the plaintiff’s farm. The defendants had a right to test his knowledge and his fairness as a witness, upon cross-examination. For this purpose it was proper to ask him if he did not know of sales of farm lands in the same vicinity, at a much less price than he had put upon the farm of the plaintiff. If he did know of such sales, but disregarded them in fixing the price of the plaintiff’s land, [628] that circumstance was calculated to affect his credibility, unless it was explained to the satisfaction of the jury. The judgment is reversed, and a venire facias de novo is awarded.