Knight Bros. v. Chicago, Rock Island & Pacific Railroad, 122 Mo. App. 38

Knight Bros. v. Chicago, Rock Island & Pacific Railroad

122 Mo. App. 38 | Mo. Ct. App. | 1906

ELLISON, J.

The defendant railway company by one of its passing locomotives set fire to plaintiffs’ adjoining meadow and, as plaintiffs claim, destroyed it. They brought this action for damages.

The evidence in behalf of the plaintiffs tended to show that in the fall of 1904, they had reserved the pasturage on the meadow field in question for later use and that it was being so reserved on October 16th, when as they were about ready to turn their stock upon it, it was destroyed by defendant setting fire thereto. Not only was that growth of grass destroyed, but the roots of the grass were burned so as to ruin it and so as to require that it be reseeded, if desired for meadow. The following is the substance of an instruction given at plaintiffs’ instance, viz: that they could recover, the value of the grass destroyed by the fire; and the cost of reseeding the land; and also the loss of a crop of hay for the next (1905)-season, and the fall pasturage of such season.

We regard that part of the instruction allowing for the loss of a meadow crop and pasture for the next year after the fire as not the proper measure of damages. What the value of a crop to he produced in the future may be, is, ordinarily, too uncertain and conjectural to be the subject of judicial ascertainment. Favorable or unfavorable seasons for the growth of crops; favorable or unfavorable conditions of harvest; to say nothing of proper or improper cultivation, render the value of a future crop extremely problematical. [Chicago v. Huenerbein, 85 Ill. 594.] But the lands upon which crops can be grown have a value, known as a rental value, and such value is the true measure of damages. For people aré ready to pay rent and take the risk of a crop. *43The risk is considered in fixing the rent. In other words, the damage is not the value of a crop which never had an existence, hut the use of the land is the loss and the damage is the rental value of that use. [Stanley v. Railroad (decided this term).] If the wrongful act of defendant in burning the meadow deprived plaintiffs of the use of it, their loss was as much as if defendant had entered upon the land and so deprived them of its use. In the latter sort of case, the Supreme Court of Texas held the rental value to be the measure of damage. [Houston Ry. Co. v. Adams, 63 Texas 200, 205.] And in a case where a railroad built an embankment which caused water to overflow lands and destroy a crop planted but not yet up, the court held the rental value of the land together with cost of planting was the measure of damages. [O. & M. Ry. Co. v. Nuetzel, 43 Ill. App. 108.] In this State, Hood leased a farm to Hughes, the term to begin at a time named. When that time arrived, it Avas discovered that through the obstinacy of a prior tenant Hood could not give possession and Hughes sued him upon covenant in the lease, and the Supreme Court held that the measure of damages was the difference between the rent reserved in the lease and the rental value. That if the rental value was more than the rent reserved, Hughes should recover the difference. [Hughes v. Hood, 50 Mo. 350. See also Green v. Williams, 45 Ill. 206.]

There is another phase of the case which appears to have had the attention of the respective counsel which will doubtless arise on retrial. It involves the rule of avoidable consequences. It was plaintiffs’ duty to protect themselves against loss, so far as they reasonably could. They could not, for instance, allow their field to lie untilled for several years and hold defendant for its rental value. They can only hold defendant for whatever time defendant’s act deprived them, as farmers, of the use of the field. In determining whether *44plaintiffs acted reasonably, tbe future use they wished to make of the field should be considered. If they wished to reseed it and continue it as a meadow, they should be allowed reasonable time to do so, and if getting the land, “reset”’ in meadow involved a total or partial loss of the use of it for a season they were damaged by such loss in the amount of its rental value. Plaintiffs testified that they attempted to reseed it by feeding timothy hay to cattle and otherwise scattering seed over it in the winter of 1904 and 1905. It seems that that mode of reseeding looked promising in the spring, but the dry weather in July and August killed the young grass and so left a total loss. It should be left to the jury to say whether that was a reasonable and proper effort, the circumstances considered, to avoid a loss of the use of the land for the crop of 1905. If it was, then plaintiffs should be allowed that loss.

Some technical objections were made to instructions assuming facts, etc. Whatever there may be in this, can, of course, be avoided at another trial. It would also be proper to submit questions of value as they were at the time when and the place where, destroyed.

The judgment is reversed and the cause is remanded.

All concur.