147 Iowa 124 | Iowa | 1910
During the year of 1906 plaintiff was farming about one hundred acres of land belonging in part to himself and in part to his wife, lying about half a mile west of the right of way of the defendant road in Pottawattamie county. Through a bridge on this right of way Honey Creek flows from the east, where it rises in the hills, and after passing under what is known as Frazier’s Bridge, a wagon bridge at the edge of the right of way, it flows farther west for a little distance, and then makes a sharp turn to the south through bottom land. After passing under the Frazier bridge, the stream is very shallow in the ordinary stage of water, the bottom of its bed not lower than the land to the west, its western bank being a levee or embankment, whether natural or artificial does not appear, which alone restrains the water from leaving the channel and flowing on the adjacent land. On March 26, 1906, a gorge of ice, logs, brush, and debris formed at the Frazier bridge following a sudden rise of the stream, and the employees of defendant broke it up, causing the material composing it to be carried around the bend above referred to, where, as plaintiff alleges, the logs, brush, and debris lodged in the shallow channel of the stream as the water subsided, causing such 'an obstruction of the channel
Under these circumstances, we do not think that it was error to allow plaintiff to testify as to the value of the immature crops destroyed, that is, as to the difference in value between the crops as they stood before the flooding of the land and their value afterwards, taking into account the right of plaintiff to mature and harvest them on the land, so far as they were not destroyed. It is true that in the Drake case, supra, it was held that it was error to allow a witness to testify that the crop which was immature when destroyed by the flood would have been worth a certain amount per acre; the answer being based on the number of bushels per acre which would have been realized had the crop not been destroyed. But the court conceded that the value of the premises covered by the immature crop should be estimated with reference to such crop as it was ait the time of the injury. And in the Harvey case it is said: “Of course, in determining the value of the land before and after the injury the value and condition of the crops, if any, and the extent to which they are injured or destroyed, are material matters for the consideration of the jury.” We think it was not error, therefore, to allow plaintiff to testify as to the value of the immature crop
It may be that, if plaintiff had been a tenant under a lease for a specified period of time, the court might consistently have directed the jury to determine the value of his leasehold interest in his wife’s land before and after the injury; but, as it does not appear he had any right in the land save that he was lawfully raising crops thereon, we can not well see what other measure of damage could have been adopted with reference to such land than the difference in value of the immature crops growing upon the land before and after the injury occurred. The value of his right before the injury was the value of the immature crops, and the value of his right after the injury was nothing more than the value of the immature crops as they were after the injury was inflicted. We can not see that there was any error prejudicial to appellant in receiving the testimony of plaintiff which was objected to, or in the instruction as given with reference to the measure of damages for crops destroyed on his wife’s land. As suggested in Blunck v. Chicago & N. W. R. Co., supra, it is obvious that where crops are growing on leased land the value of the crop destroyed is the basis of the recoverable damage. ,
Many photographs have been presented as a part of defendant’s evidence, relied on as showing conclusively that the bed of the stream below where the break occurred was in its natural condition full of logs and rubbish, so that the damming back of the water in the subsequent flood could not properly be attributed to the presence of the logs and rubbish coming down from the gorge. But some of the witnesses identified particular logs subsequently found below the break in the embankment in June as having formed part of the gorge which was broken up by defendant’s employees in March, and we can not say as a matter of law that there is no evidence to support a finding that the negligence of defendant’s employees in not seeing that these logs were carried further down the stream or were removed from it did not contribute in an important degree to the formation of the obstruction in the bed of the stream which caused the break in the embankment in June resulting in the injury to plaintiff’s land. We think there was sufficient evidence of negligence, and of the break in the embankment as the proximate result thereof, to carry the case to the jury.
VIII. The verdict is complained of as excessive; but, in view of the evidence as to the value of the crops destroyed, we can not say that it is unreasonable. Plaintiff lost almost the entire product of nearly a hundred acres of land which was either planted in corn or appropriated to the raising of a crop of hay, and, if defendant was liable at all, the plaintiff was entitled to very substantial damages for this loss. We see no basis on which we could reduce the amount of the verdict.
Binding no prejudicial error in the record, the judgment is affirmed.