76 Minn. 251 | Minn. | 1899
In 1897 the plaintiff, as vendee under an executory contract of sale, was in possession of a tract of land in Anoka county bordering on the Mississippi river, a tributary of which, called “Rice Creek,” ran through the land. On this creek there was a mill for grinding flour and feed, operated by water power furnished by the creek. The mill had been operated by the plaintiff for some years, and had an established line of custom. About six acres of plaintiff’s land near the river were used and were especially adapted for pasturage. The balance of the land was used in connection with the mill and the dam. About five-eighths of a mile below plaintiff’s land there was an island in the Mississippi river, about half a mile long. Prior to 1897 the defendant built a boom from this island to the east bank of the river, and had established there its assorting gap for. the purpose of distributing logs to the mills in Minneapolis. The defendant had also put in a line of piling from the upper end of the island to the west bank of the river, for the purpose of running logs into the boom.
As a result of the erection and maintenance of these works, about April 1, 1897, a large log jam was formed, which caused the water to overflow plaintiff’s land, and come up into his mill, so as to injure it, and prevent him from operating it for some nine days. About July 1, another jam occurred from the same cause, which
This action was brought to recover damages to plaintiff’s premises, the items of which consisted of the damages to the mill, the loss of the use of it while shut down by the overflows, the injury to the pasture by destroying the grass and the deposit of sand and debris upon the land.
1. The first point, made by defendant is that the plaintiff, as vendee under an executory contract of sale, was not entitled to recover damages for the injury done to his' pasture land; that the right of action for such damages was in his vendor. We see no distinction in that regard between damages to the pasture and damages to the mill. But there is nothing in the point as' to either.
The plaintiff was rightfully in possession under his contract, the terms and conditions of which he had kept and performed up to that date. He was the equitable owner of the land, and the vendor held the legal title merely as security for the deferred payments of the purchase money. Upon full performance of his contract, plaintiff was entitled to the conveyance of the property. The general rule is that damages in an action for trespass upon real property
2. The complaint alleged generally the unlawful construction and. maintenance of defendant’s works, and the consequent injury to plaintiff’s premises in 1897; and upon the trial he was permitted, against the objection of the défendant, to introduce evidence of the overflow and consequent damage, both in April and in July. There is nothing in the point that there were two separate and distinct causes of action, which ought to have been pleaded as such. It was in the nature of a continuing trespass by the same act, although resulting in actual damage on two different occasions.
3. In its last analysis the measure of plaintiff’s damages was the difference between the value of the premises immediately before and immediately after the infliction of the injury. Upon the trial, evidence was introduced of this ultimate fact, and also as to the nature and amount of the particular items of damage; as, for example, the nature and extent of t-he injury to the mill machinery by the mud and water, the value of the use of the mill during the time it was shut down, the injury to the wall of the tail-race, and what it would cost to repair or restore the same, the extent and duration
It is urged that this was admitting evidence under two different and separate methods or rules for the assessment of damages; that the plaintiff should have been compelled to adopt one or the other. On the contrary, we think the evidence was all admissible as tending to prove the same thing, viz. the damages to the premises by reason of the trespass. It is the most common thing in the world, in the trial of actions of this and analogous classes, to ask a witness how much less, in his opinion, the premises were worth after the injury than they were before, and then to particularize by introducing evidence as to the nature and extent of the different items which go to make up this estimated total diminution of value; and we never before heard this method of proving damages objected to. An examination of the record satisfies us that this was all that was done in this case.
4. The particular objection urged against the evidence as to the loss of profits of the operation of the mill during the time it was shut down is, as we understand counsel, not that this would not be a proper item of damage in a proper case supported by sufficient evidence, but that in this case the evidence on that point was too indefinite and uncertain to justify a recovery, and particularly as plaintiff kept no books of account. The testimony tended to show that the plaintiff had a' regular and well-established business, with a certain amount of custom. He testified as to the amount of business generally done at the mill, and the usual or average profits on the business done. The fact that he kept no books of account to verify his statements went to the credibility of his testimony, and the weight to be given to it, which were questions for the jury.
5. Defendant also claims that, the plaintiff having failed to prove any negligence on its part in either the construction or maintenance of its works, the court should have directed a verdict in its favor as requested. This contention is based on a misapprehension of the ground of - the defendant’s liability. Conceding that the works were just such as its charter authorized it to construct, that they were properly and carefully constructed and managed, and that defendant did nothing that was not reasonably necessary to the
judgment affirmed.
