180 A.D. 498 | N.Y. App. Div. | 1917
The court awarded to the plaintiff $200 per acre per year for four acres of land for seven years, and the defendant
I see, therefore, no reason to interfere with the finding of the learned trial justice that the damage to plaintiff’s land caused by the operation of defendant’s pumping stations was $200 per acre per annum. The evidence of the plaintiff as to the yield of the land before defendant started pumping the water was not a guess. It is true that the plaintiff, led by defendant’s counsel, so characterized it. But that was a misuse of language. A guess cannot be founded on recollection of past facts within the knowledge of the witness, as was this testimony. Testimony of this kind is neither a guess nor surmise, but the best recollection of the witness.
The defendant claims that the court was in error in awarding damages for the year pending the action, because this year was not included in the claim filed with the comptroller. In an action at law, a majority of this court has so held.
I am of opinion, however, that the court was in error in refusing to plaintiff the award for damages done to the land of his wife, cultivated by him. As the amount of these damages has been found, this may be corrected without a new trial. The courts have often considered the question whether damages to leased land should be awarded to the landlord or tenant. The rule derived from these decisions is that the party which suffers the loss has the right of action. All the cases upon this subject are devoted to determining whether such party is the lessor or lessee. In elevated railroad cases it is held that when the lease is made before the erection of the elevated structure, the tenant has the right of action for damages suffered during the term of the lease, whereas if the lease is made after the trespass, the presumption is that the rental is fixed in view of the existing conditions, and is, therefore, abated to the extent of the damage to the usable value of the property, so that it is the lessor and not the tenant who is injured. (Kernochan v. N. Y. E. R. R. Co., 128 N. Y. 559; Hine v. N. Y. E. R. R. Co., Id. 571; Kernochan v. Manhattan R. Co., 161 id. 339.) The same rule is applied in cases like the one at bar, although the facts are different, for in the elevated railroad cases the structure is a permanent appropriation of the easements of light, air and access, while in the water damage cases the
The third conclusion of law is reversed, and the court finds in place thereof that the plaintiff is not entitled to recover in this suit any damages to the land of his wife of which he was tenant at will.
The judgment and order should be affirmed, with costs.
Jenks, P. J., Thomas, Mills and Putnam, JJ., concurred for affirmance; Mills and Blackmar, JJ., voted to also
The third conclusion of law is reversed, and the court finds in place thereof that the plaintiff is not entitled to recover in this suit any damages to the land of his wife of which he was tenant at will. Judgment and order affirmed, with costs. Order to be settled before Mr. Justice Blackmar.