25 N.Y.S. 24 | N.Y. Sup. Ct. | 1893
The defendant laid a line of pipé in the highway opposite plaintiff’s lands, through which it forced a stream of salt water. The plaintiff owned the fee of the land to the middle of the highway, and such pipe was laid underground, and upon his premises. It had been maintained and used for some two years before the commencement of this action, and was so laid without permission or right on the defendant’s part. During such two years, it had leaked more or less, and discharged salt water or brine through the earth over plaintiff’s premises, thereby injuring his shade trees, his shrubbery, and the annual products of his garden. This action is brought to recover damages for the trespass so committed by the defendant. So far as the questions presented by this appeal are concerned, it is conceded that the defendant is a trespasser; but it is claimed that an erroneous measure of damages was adopted by the trial court, and for that reason a reversal of the judgment is asked. The plaintiff was allowed to testify, first, as to what was the value of the premises at the time the pipe was laid. After giving that value at four or five thousand dollars, he was asked, “What were they worth at the time of the commencement of this action?” Such question evidently calls for their value with the pipe line as it then was, and the premises subjected to the constant leakage flowing therefrom.
