98 Tenn. 375 | Tenn. | 1897
R. M. Doss and wife recovered a judgment in the Circuit Court of Williamson County against the defendant, J. M. Billington, for the sum of one hundred and fifty dollars, as damages for wrongfully cutting ditches on plaintiff’s land. Bill-ington appealed and has assigned errors. The record
The assignments of error are based upon the charge of the Court, and are two in number. First, it is assigned as error that the Court instructed the
Upon this charge, it is assigned as error that the Judge charged that the measure of damages would be the difference in the value of the property before the digging of the ditches and afterwards. It is insisted the measure of damages would be the cost of filling up the ditches. We are of opinion the charge was erroneous. In Sutherland on Damages, Yol. III., Sec. 1017, it is said that when the injury is permanent, any depreciation in the value of the property will be an element of damages, according to extent and duration .of plaintiff’s estate. An estimate of damages on this basis presupposes that the premises are subject to the same lasting detriment, and that it is not to be avoided or removed by any expenditure, for, otherwise, the injury would be measured upon different elements.” To the same effect are our own cases.
In that case the action was to recover damages resulting from an alleged negligent construction of a sewer, whereby both storm and sewage water were discharged from the sewer upon the premises owned by the plaintiff. The Circuit Judge in that case charged the jury “that if they found from the evidence that the market value of plaintiff’s property had been permanently impaired by the construction of the sewer, its proximity and liability to back up surface water and discharge offensive sewage matter upon his premises, plaintiff would be entitled to recover difference in market value of property before and since the building of the sewer.”. This instruction was held erroneous, upon the ground that the cause of the injury — the defective sewer — .
The second assignment of error is that the Court instructed the jury that any advantage that plaintiff would receive by having an additional flow of stock water, by reason of those ditches, cannot be consid
Reverse and remand.