Gentry v. Richmond, R. R.

The opinion of the court was delivered by Mr. Ohiee Justice MoIyer. This action was commenced in February, 1890, for the purpose of recovering damages alleged to have been done to plaintiff’s property by the defendant company. In the complaint, three causes of action are stated: 1st. Because the defendant so negligently constructed a culvert, under an embankment where the railroad runs through plaintiff’s land, as that the water on the north side of the road was backed up on plaintiff’s land, so as to render the same almost worthless; and, further, that, owing to — 287 — the improper and insufficient construction of said culvert, the plaintiff’s laud on the south side of the railroad has been so washed and covered with sand as to greatly impair the value of said land. 2d. Because plaintiff’s land has been injured by fires originating from sparks escaping from defendant’s locomotives, or from other sources, for which defendant company is liable. 3d. For removing a fence which plaintiff had built for the purpose of enclosing his pasture land, whereby he could not keep his cattle confined therein. It seems from the evidence that the embankment and culvert were originally constructed in the year 1881, and that in May, 1886, during a freshet in the stream over which the road crossed on said embankment, the culvert was washed out, and the plaintiff’s land on the south side of the railroad was washed and covered with sand — to what extent, was one of the questions of fact in the case. From the judgment rendered in the cause the plaintiff appeals upon the following grounds, alleging error as follows: “1st. In requiring the plaintiff to testify what he received for other lands near the lauds damaged, sold by him long after the freshet in 1886, and in holding such evidence competent. 2d. In allowing the witness, J. H. Montgomery, who had never examined the land until the trial, and did not go over it then, to testify that he only saw one-fourth of an acre that had been damaged by the freshet. 3d. In holding there was no evidence to sustain the plaintiff’s third cause of action, and in granting a non-suit as to the same. 4th. In holding and charging the jury that, in estimating the damage to plaintiff, they could not take into any consideration the loss of any crops from the land, but that the only measure of damages would be the difference between the value of the land immediately before and after the freshet. 5th. In instructing the jury that, in estimating the damages, they could only go back to 1886 — the time the embankment broke — thus cutting them off from any opportunity of giving damages for injury done to the land above the embankment before it broke. 6th. In refusing the motion for a new trial.” Passing by, for the present, the third and sixth grounds of — 288 — appeal, it will be observed that the others raise three general questions: 1st. Whether there was error in the rulings as to the admissibility of the testimony of the plaintiff and Montgomery. 2d. Whether there was error in regard to the measure of damages. 3d. Whether the Circuit Judge erred in restricting plaintiff’s right to recover to such damages only as were sustained after the embankment was broken in May, 1886. 1 As to the first question, we do no not think that there was any error of law either in receiving the testimony of the plaintiff above referred to, or that of Montgomery. While it was very true that such testimony was not calculated to throw much light upon the material inquiry in the case, and might have been entitled to but little weight, yet it certainly was competent, and it was for the jury alone to consider whether it was of any value at all, and if so what weight should be attached to it. The material inquiry being, how much the land was damaged, its comparative value before and after the disaster occurred to which the injury was attributable, afforded a good test; and to determine this, it was clearly admissible to show what adjacent lands had actually sold for, as that would afford some, though perhaps very little, evidence, owing to the rise in the price of lands, and perhaps other causes, of the value of the land in question both before and after the freshet. So, too, the testimony of Montgomery, though based upon a superficial examination of the land made some time after the injury had been done, and, therefore, not entitled, perhaps, to much weight, was at least competent; and that is all we have to consider. 2 The second question is really the most matei’ial question in the case. In considering this question, we must bear in mind that there is no allegation in the complaint that any crops growing upon the land were either injured or destroyed by the backing of the water on the land on the north side of the railroad prior to the washing out of the culvert, or upon the land on the south side of the railroad when the freshet occurred; but the only allegation is, that the land itself was injured by both of these causes. So that the only inquiry, was, how — 289 — much the laud was iujured by either or both of these causes. The true test of this would be the difference iu the value of the land before and after the injury was sustained; and that, as we understand it, was the measure by which the jury were instructed to determine the amount of the damages. While it may be true that one of the elements entering into an estimate of the value of land used for agricultural purposes, would be the crops which it would be susceptible of yielding (and testimony as to the crops was received for this purpose), yet it by no means follows, that, in a case like this, the value of the crops, which might have been made upon the land but for the injury done to it, could be considered in estimating the amount of damages. For, besides the fact that there is no allegation in the complaint of any damage sustained by loss of crops, either present or prospective, it seems to us that damages resulting from a loss of, or injury to, crops which might have been made, are altogether too remote and speculative, depending upon too many uncertain contingencies, to be allowed in a case like this. See Livingston v. Exum, 19 S. C., 223; Sitton v. Macdonald, 25 Id., 68; City of Chicago v. Huenerbein, 85 Ill., 594; s. c. 28 Am. Rep., 626. In 5 Am. & Eng. Enc. L., 36, the rule is stated in these words: “In actions for injury to real property, where the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or, in some cases, the amount necessary to restore the property to the condition in which it was before the trespass was committed.” 3 The cases of Hammond v. Port Royal, &c., Railway Company, 15 S. C., 10, and Hevereux v. Champion Cotton Press Company, 17 Id., 66, cited by appellant’s counsel, we do not thiDk in point. In the former case, the only point made by the appeal, so far as the question of damages was concerned, was whether the Circuit Judge erred in instructing the jury that they could find damages done by the original company from whom the defendant company bought the railroad before the sale. There was nothing in the charge, or the requests to charge, which called for any decision of the question whether the value of crops that might have been made upon the land — 290 — should enter into the estimate of the amount of damages, and, therefore, anything' said upon that question in the opinion was clearly obiter dicta. In the other ease, the Circuit Judge refused to charge that the amount of rents which might have been received could enter into the estimate of the damages, and his action in this respect was affirmed by the Supreme Court. So that the case of Devereux is rather against than in favor of appellant’s contention. To avoid misapprehension, however, we desire to add, that we must not be understood as saying that in no case could rental value enter into the estimate of damages. For if the owner of real estate leases it for a term of years to a good tenant at a stipulated rent, and the tenant is forced to abandon the lease by reason of the injury done to the property, then the loss óf rent, being a direct result of the injury, and the amount thereof not being speculative or uncertain, we suppose that in such a case the amount of rent lost might be included in the estimate of the damages. 4 Becurring, then, to the third ground of appeal, it is only necessary to say that we see nothing in the “Case” which can afford a basis for this ground. It does not there appear that any motion for a non-suit was granted, or even made. On the contrary, the jury were instructed that they might, if satisfied of the facts, give damages under the third cause of action. 5 As to the sixth ground of appeal, this court has so often held that such a ground cannot be considered here, that we do not deem it necessary to repeat what has been so often said. 6 We think,- however, that the fifth ground of appeal is well taken. The action having been commenced in February, 1890, the plaintiff had a right to recover any damages which had accrued within the six years next preceding that date; and it was, therefore, error to instruct the jury that they need not go back beyond 1886, as that was the time when the embankment was broken. Such an instruction was, no doubt, correct so far as the damages to the land on the south side of the railroad were concerned, but it was clearly erroneous so far as the damages done to the land on the north — 291 — side of the road were concerned; for those damages being due to the backing of the water on plaintiff’s land, by reason of the embankment, probably accrued before the breaking of the embankment. For this reason, therefore, the ease must go back for a new trial. The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.