234 Mass. 90 | Mass. | 1919
This is an action of tort in the nature of trespass upon a family cemetery. The case was referred to an auditor whose findings upon questions of fact it was agreed should be
The defendant contends that the measure of damages is the difference between the fair market value of the property before the alleged trespass and its fair market value immediately after-wards. This contention cannot be sustained. While the difference in market value of land before and after trespass thereon is often the correct rule, it is not applicable to a case of this kind. Ordinarily it would be difficult, if not impossible, to prove the market value of a family cemetery or that it had any market value.
If, as the judge may have found, the most economical way of repairing the injury done was by removing the gravel used in building the road and restoring the burial ground to its original condition, the measure of damages adopted was correct. Accordingly, the ruling of the trial judge that the measure of damages was the cost of removing the material placed in the cemetery in building the road and of restoring the premises to their former condition, was rightly made. It is agreed that if such cost is the proper measure of damages judgment is to be entered for the plaintiffs in the sum of $70. Loker v. Damon, 17 Pick. 284. Holt v. Sargent, 15 Gray, 97. Cavanagh v. Durgin, 156 Mass. 466. Childs v. O’Leary, 174 Mass. 111, 116. The case of Hopkins v. American Pneumatic Service Co. 194 Mass. 582, is not at variance with the conclusion here reached; the facts in that case distinguish it from the case at bar.
The finding of the auditor that no physical injury was done to
The first and second rulings requested by the plaintiffs and made by the judge were correct. As the plaintiffs’ recovery is not limited to nominal damages, their third request is not applicable. The defendant’s requests were rightly refused.
Exceptions overruled.