Plаintiffs in error, who were the owners of a lease upon a certain lot fronting on West Dallas pike in the city of Dallas, sued defendant in error to recover damages. for the depreciation or destruction of the value of such léase, for the loss of certain рrofits sustained in the operation of their business conducted upon such lot, and for certain expenditures in connection therewith, all because the county, in the reconstruction of said road, had altered the same in such way as to obstruct the only avenue of ingress and egress to and from their premises. The trial court entered a judgment for the plaintiffs upon findings by the jury that they had sustained a loss of profits pleaded by them, and likewise had expended certain sums of money in consequence of the reconstruction of the road by defendant county. The Court of Civil Appeals reversed the judgment of the trial court upon the proposition that the plaintiffs’ cause of action was for damages to their leasehold interest in the land, the correct measure of which was the difference between thе value of the leasehold immediately before the commencement of such public improvement and immediately after its completion. See
The rule adopted by the Court of Civil Appeals does not afford plaintiffs in error full compensation for their loss. The theory of all proceedings to assess actual damages is based upon the conception of allowing compensation for a loss actually sustained. It is of course not contemplated that a plaintiff will recover more than his loss, by way of anticipated profits or the like, but it is contemplated that his actual loss will be made good. What is the safest method for arriving at a determination of this just, fair, and full compensation has often engrossed the best thought of the courts. The rule has been carefully considered in George v. Hesse,
But it is equally clear plaintiffs in error pleaded the special elements of damage-— that is, lost profits and necessary expenditures — during the period when the highway
“No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person.”
This is broad enough to include defendant in errоr as a subdivision of the state with the powers of eminent domain (see Dallas County v. Barr [Tex. Civ. App.]
Plaintiffs in error do not show a case of an actual taking of their property or of the complete destruction thereof, so as to fix their damages once for all in the value of the property taken or destroyed, but rather they make a case of a temporary interference for a dеfinite time, with their established business, whereby they sustained a loss of profits and were compelled to make necessary expenditures, in amounts easily ascertainable. Their lease has not been rendered worthless nor their business finally destroyed. They continued to use their property as adapted to the changed conditions. Under those circumstances there is no doubt but that they are entitled to recover damages in such sum as will compensate them for the loss of the profits they would have derived, and the expenditures they Were required to make, during the temporary interruption of their business. Otherwise they would not get full compensation for their loss.
In Powell v. H. & T. C. R. Co.,
“We therefore hold that the trial court did not err in submitting to the jury the issue of damage to the property and to the trade of plaintiff.” (Italics ours.)
It is in no sense a double recovery to allow damages for injury to one’s land or interest therein, and at the same time to allow damages for injury to his mercantile or other business conducted thereon. It takes both to compensate for the full loss where the land and thе business as well have been damaged. It is readily seen in such a case that, by cutting off the approach to one’s business, the loss to such business might be considerable, whereas the injury to the land might be negligible.
In American Construction Co. v. Caswell (Tex. Civ. App.)
'We have carefully examined the assignments of error presented in the Court of Civil Appeals by defendant in errоr, and find none that should be sustained. We have given no consideration to the minor questions of whether or not the verdict and judgment embracе a double recovery, items not recoverable, or the like matters, since no such points have been raised by defendant in error at any stage of the.appeal, but the case has been presented and determined upon the major proposition оf the measure of legal damages to be applied. Holding, as we do, that the trial court applied the correct measure of damages in permitting a recovery for lost profits during the interruption of plaintiffs in error’s business, we recommend that the judgment of the Court of Civil Appeals be reversed and that of the trial court be affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court