| Mo. Ct. App. | Jan 28, 1895
This action is for damages arising from the destruction of certain fruit trees. The trial court ruled that plaintiff could only recover one cent damage and he appeals.
The action grew out of defendant’s destruction of plaintiff’s fruit trees, standing and growingon the right of way which had been deeded to defendant by plaintiff. In the month of April, 1893, plaintiff executed an agreement to convey the right of way “for and in consideration of the sum of $800 and the construction of a railroad over the lands hereinafter described.” The agreement contained the following additional provision:
“It is further agreed that all mineral rights on said*643 lands are reserved for the benefit and use of the said Cooley and Carter, and the right to mine on said right of way, so as not to interfere with the roadbed of the railroad, also all apple trees and timber on said right of way are reserved, and if any fruit trees are destroyed, they are to be paid for at a reasonable price to be hereafter agreed upon.”
. Afterwards the plaintiff deeded the right of way to defendant by a deed containing the following clauses: “The said grantors reserve all mineral on said right of way and the right to mine thereon so as not to disturb the roadbed of the said railroad.
“All fruit trees destroyed on said right of way to be paid for at a reasonable valuation to be hereafter agreed upon.”
The ruling of the court was that plaintiff could only recover the value of the fruit trees for the purpose of wood or other timber, and as there was no evidence as to what such value was, he could only recover nominal damages. This ruling under the express terms of the contract and the deed, was erroneous. The land upon which the fruit trees were standing, was, it is true, deeded to defendant. But the contract was that the fruit trees were to be paid for in addition to what was to be paid for the land. What was meant when it was stated that the value of the fruit trees was to be paid to plaintiff by defendant? Certainly it was the value as fruit trees. They were to be valued at what they were. As well might it be said that a piece of machinery would be valued according to its weight as iron; or, a shoe according to the value of the leather of which it is made; as to say that a fruit tree should be valued as for the timber in it. In White v. Stoner, 18 Mo. App. 550, we ruled that the measure of damages for the destruction of fruit trees, was the value of the trees as fruit trees. That case did not arise, as has this, but
Defendant contends that the conveyance of the land and reservation of the trees, had the effect of severing the trees from the land, and that they thereby became personalty disconnected from the land. It is probable that, this was the view the court took of the case.' But our interpretation of the contract and deed together is this: That all fruit trees, not interfering with the use of, and left standing uninjured on, the right of way, were reserved to the grantor; and all fruit trees destroyed were to be paid for by defendant. The plaintiff owns all the fruit- trees left uninjured and standing on the right of way; and he must be paid the-value of all such as are destroyed. The judgment will be reversed and the cause remanded.