| Kan. | Jan 15, 1891
This was an action brought in the district court of Wilson county by J. R. Willits against The Chicago, Kansas & Western Railroad Company to recover damages for alleged injuries to real estate. The case was tried before the court and a jury, and the jury returned a verdict in favor of the plaintiff and against the defendant for $400 damages, and judgment was rendered accordingly; and to reverse this judgment the defendant, as plaintiff in error, brought the case to this court.
It appears that the plaintiff below, defendant in error, owned about nine acres of land adjoining the city of Fredonia; that he sold and conveyed between two and three acres of the same to the defendant for a right-of-way and for station purposes ; that the defendant, in constructing its railroad, entered upon the remainder of the plaintiff’s land without his consent, and made excavations thereon from seven to ten feet deep, and carried away the earth, to the great injury of the land; and for these injuries the plaintiff brought and prosecuted this action. The first claim of error is, that the case was tried by the plaintiff and the court below upon an erroneous theory as to damages. This theory will be apparent from the following instruction given by the court to the jury, to wit:
“The first question for you to consider will be the measure of plaintiff’s damages, and upon that point you are instructed that to ascertain the damages to which the plaintiff should be entitled, if any, you will ascertain, First, what was a fair, reasonable market value of the plaintiff’s land before the commission of these alleged injuries, and what was the fair market value of the plaintiff’s land after the commission of these alleged injuries, and the difference, if any, between these two sums, would be the measure of plaintiff’s recovery.”
It is claimed that this instruction is erroneous for the following reasons: First, because it permits the plaintiff to recover for all losses, past, present, and prospective, which he had suffered or might suffer by reason of the defendant’s wrongs, and not merely for such actual loss only,.-as had oc
Involved in the first proposition is the claim that the diminished value of the real estate injured is no criterion at all for the recovery of damages. We think it is, however. It must be remembered that this is not an action merely for injuries to the plaintiff’s' possession, as the old common-law action of trespass quare clausum fregit was, but it is an action for injuries to the realty itself, to the inheritance, and damages for such injuries may generally, if not always, be estimated by considering the diminished market value of the land. They may, however, be estimated in various ways, generally at the election of the owner of the land. In cases of trespass upon real estate where no appreciable injury occurs, only nominal damages can be recovered; but where the injury is appreciable and computable, and is done willfully and maliciously, punitive or exemplary damages may be allowed. But neither of these cases is the present case, and these rules do not apply. But in all cases of injuries to real estate, including the present case, full compensatory damages may be recovered. In other words, the owner of land, for injuries to it by the wrongful acts of another, may recover exact compensation for his entire loss. In giving compensatory damages, various rules for computing the same are adopted to correspond with the different kinds of cases and the manner in which they are presented, but generally they are adopted at the election of the owner. Where something is wrongfully taken from the real estate, the owner may, if. he chooses, maintain an action of replevin to recover it back; or he may maintain an action for its value; or he may waive the tort and recover for the amount of the benefit actually received from the thing taken by the wrong-doer; or where the wrong-doer has occupied the land for some time, the owner may waive all other injuries or losses and recover
“In general, this damage is the amount the estate is diminished thereby in value.” (Page 393.)
In the last authority cited, the following language is used:
“In cases of trespass, the cause of action is the wrongful act of the defendant, and the injury resulting is merely the measure of the damages. Therefore, applying the rule above, all damages for a trespass must be recovered in a single action.” (Page 16.)
“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.” (Page 36.)
Also in all cases where damages may be recovered for the depreciation in the market value of real estate caused by injuries thereto, the owner may recover for the depreciation in the market value of the entire tract, although the injury may in fact be directly only to a portion of the tract. See the above authorities and also the following: K. C. E. & S. Rld. Co. v. Merrill, 25 Kan. 421" court="Kan." date_filed="1881-01-15" href="https://app.midpage.ai/document/kansas-city-emporia--southern-railroad-v-merrill-7885344?utm_source=webapp" opinion_id="7885344">25 Kas. 421; Comm’rs of Smith Co. v. Labore, 37 id. 480; C. B. U. P. Rld. Co. v. Andrews, 41 id. 370, 379; St. L. Ft. S. & W. Rld. Co. v. McAuliff, 43 id. 185.
The plaintiff also in this case showed the exact location of his land — how it was situated with respect to the city of Fredonia and its streets and the railroad, etc., and for what purposes it might be used, and the jury were also permitted to see it. We do not think that there was any error in this; for when the question of the value of real estate is in issue the owner is entitled to show its market value for any purpose for which it might be the most advantageously used, and for which it would sell in the market for the highest price. (King v. M. U. Rly. Co., 17 Am. & Eng. Rld. Cases, 93; Comm’rs
It is also claimed that the court below erred in permitting oral testimony to be introduced tending to contradict the effect of the deed executed by the plaintiff to the defendant. The plaintiff’s counsel, however, stated at the time it was introduced that it was not introduced'for that purpose, and the court did not permit it to go to the jury for that purpose, and the court afterward instructed the jury that it could not be used for that purpose. The real object of the testimony seems to have been to show that the trespass was committed willfully and maliciously. But as no exemplary damages were allowed, it really answered no purpose.
It is also claimed that the court below erred in giving the following instruction:
“You have the right also to take into consideration in this case such knowledge and information as you may have acquired of the plaintiff’s land, as to the alleged injuries committed there, by the personal examination of the premises that you have been permitted to make under the directions of the court.”
Under the decision of this court in the case of City of Topeka v. Martineau, 42 Kan. 387" court="Kan." date_filed="1889-07-15" href="https://app.midpage.ai/document/city-of-topeka-v-martineau-7887805?utm_source=webapp" opinion_id="7887805">42 Kas. 387, this instruction was not erroneous. We do not think that any material error was committed in this case, and therefore the judgment of the court below will be affirmed.