Adam v. Chicago, Burlington & Quincy Railroad
122 S.W. 1136
Mo. Ct. App.
1909
Check Treatment
JOHNSON, J. —

Defendant, a railroad company, built a railroad across the land of plaintiffs in 1906, and put in a culvert where the roаd crossed a natural watercourse. Plaintiffs allege the culvert was insufficient and that in 1908 five acres of alfalfa рlanted by plaintiffs in the preceding year were totally destroyed by the waters thrown back on plaintiffs’ land by the obstructiоn. Several defenses were interposed in the answer. A trial to a jury resulted in a verdict and judgment for plaintiffs in the sum of $200/ and thе cause is here on the appeal of defendant.

The errors assigned by defendant relate solely to the issue of the measure of damages.' It appears that a matured crop was destroyed and further that the depоsits left on the land prevented any renewal of the crop. The ‍​‌‌‌‌​‌‌​‌​​​‌‌​​‌​‌​​​‌​​​​​​​​​​​‌​​‌‌‌‌​‌​​​‌‍evidence of plaintiffs is to the effect that thе market value of the matured crop, which was the first of the season, was ten dollars per acre, and that three other crops would have been produced that season. A *207witness testified that a field of alfalfa was of the vаlue of “ten dollars an acre for each cutting and ten dollars for the stubble.” Evidently this estimate was adopted by the jury. In the instructions given at the request of plaintiffs the jury were told that if they found for plaintiffs to assess the damages “at the fair value of said alfalfa on the ground at the time of such loss or damage.”

Defendant argues that since plaintiffs failed to prove either the cost of re-seeding and the rental value of the land while a new crop of alfalfa was bеing grown, or the difference in the market value of the land caused by the destruction of the reproductive powеr of the roots, there was ‍​‌‌‌‌​‌‌​‌​​​‌‌​​‌​‌​​​‌​​​​​​​​​​​‌​​‌‌‌‌​‌​​​‌‍no evidence on which to base a verdict. It is the theory of deféndant that the proper rule was the difference in the market value of the land before and after the injury. In this conclusion defendant finds support in the opinion of the Supreme Court of Nebraska in Thompson v. Railway, 121 N. W. 447, where it is said: “There is a difference in conditiоn between an ordinary annual crop and a.permanent crop such as alfalfa which justifies and requires a different rule in the measurement of damages, and we are of the opinion that a fair criterion of the damages suffеred by the destruction of a good stand of alfalfa would be the difference between the value of the land with such a crop standing and growing upon it and the same without such crop.” This view of the law, doubtless, was induced by consideration of the facts that alfalfa is perennial and its roots grow very deep and become closely interwoven. We do not think the opinion of the Nebraska court is in harmony with the fundamental rules recognized in this State in such cases. These rulеs thus may be stated: Where the destruction of the thing includes but a temporary injury to the land and the thing may be replaced in a comparatively brief period, the true measure of damages is the cost of replacing it and the rental value of the land until it is replaced, but where the destruc*208tion of the thing inflicts more than a temporary injury to the land, or the replacement would be impossible or tedious and uncertain both in cost and result, the criterion is the damage inflicted ‍​‌‌‌‌​‌‌​‌​​​‌‌​​‌​‌​​​‌​​​​​​​​​​​‌​​‌‌‌‌​‌​​​‌‍on the market value of the land. And in cases where a matured crop is destroyed the crop is treated as personal property and the measure of damages is its market value standing on the ground.

Illustrative of these rules are the following instances: The value of an annual crop such as corn, wheat, or oats destroyed before maturity is measured by the cost of reseeding and the rental value of the land. [Standley v. Railway, 121 Mo. App. 537; Jones v. Cooley Lake Club, 122 Mo. App. 113.] A hedge was treated as a part of the inheritance and the rule applied was the difference ‍​‌‌‌‌​‌‌​‌​​​‌‌​​‌​‌​​​‌​​​​​​​​​​​‌​​‌‌‌‌​‌​​​‌‍in the market value of the land before and after its destruction. [Gates v. Railway, 44 Mo. App. 488.] Fruit trees were held to belong to the inheritance, but the matured fruit on them to be personalty. [Doty v. Railroad, 136 Mo. App. 254, 116 S. W. 1126.] A crop of timothy hay was treated as personalty, but damages for the grass roots which also were destroyed ‍​‌‌‌‌​‌‌​‌​​​‌‌​​‌​‌​​​‌​​​​​​​​​​​‌​​‌‌‌‌​‌​​​‌‍were held to be measured by the cost of reseeding and the rental value of the land. [Mattis v. Railwаy, 119 S. W. 998.] In this case it is said that a different rule would be applied where prairie grass roots were destroyed because of the impossibility of replacing wild grass. In such case, the injury to the inheritance would be the test.

There has been a vast deal of law written in this State on the subjects we are discussing and the decisions are not altogether harmonious. It is not nеcessary nor useful to refer to or even cite the numerous cases. We are satisfied with our opinions in the Mattis аnd Doty cases, and think the rules applied in them control the determination of the question under consideration.

We рerceive no essential difference between a timothy or clover field and one of alfalfa. All of thesе crops *209are perennial and if totally destroyed, may be replaced ■without permanent injury tp the soil. Their replacement is a matter of a comparatively short period and may be accomplished with reasоnable definiteness and certainty as to cost and result. We conclude that the proper rule in the case at bar for measuring the damage caused by the destruction of the roots was the cost of reseeding and the rental value of the land, and that the rule applicable to the matured crop was its market value standing on the ground. The instruction to the jury was erroneous because it permitted them to include in their assessment the value of three future crоps and did not confine them to the proper rules. Crops that might have been grown in the future are an element too contingent and speculative to afford a basis for the assessment of damages in such cases. [Standley v. Railroad, supra.]

The judgment is reversed and the cause remanded.

All concur.