12 Ind. App. 410 | Ind. Ct. App. | 1895
The appellees are husband and wife, and this action was brought by them against the appellant for damages to the real estate of the wife on account of the alleged negligence of the appellant in reconstructing a culvert near its railroad and the said real estate, causing the water to back, overflow and stand upon the same, and injuring it in various ways, and injuring the crops thereon and the health of the appellee, Fannie A. Sparks.
In the court below the appellees’ recovered.
At the trial appellees’ counsel propounded to John P. Sparks, the husband and witness of Fannie A. Sparks, the following question:
To this question, the appellant’s counsel objected because it sought to elicit from the witness a conclusion and not a fact. The objection was overruled and the appellant excepted. The witness then answered: "A thousand dollars,” which was all the evidence given on the subject of the amount of damages.
The question involved two elements of damages, viz., damages to the real estate and damages to the growing crops. Each of these formed a proper subject of inquiry which should have been pursued separately, although the objection was not based upon the ground of the duplicity of the question. Before determining the question before us it is proper to ascertain what is the measure of damages for the injury to the land and to the growing crops.
Injuries of the character here sued for are somewhat analogous to those involved in actions for damages for the wrongful appropriation of land by municipal corporations or railroad companies. In all such cases where the injury is a permanent one, the measure of damages to the land is the diminished market value of the same by reason of the injury, which is ascertained by proof of the market value before the injury and the market value after the injury, leaving it to the jury or court trying the cause to calculate the difference. If, however, the injury is not a permanent one, and the action does not recognize the right of the defendant to continue the obstruction, then it seems that damages can only be recovered up to the time of the commencement of the action, and that successive actions may be brought for succes
Where the destruction or injury of the crops enters into the damages as an element, such damages are measured by proof of the value of the crops with and without the injury, leaving the court or jury to determine the difference, as in the other case.
We recognize the fact, however, that an injury resulting from such an act of negligence as the one here complained of may be in part permanent and in part temporary or transient. Thus the land and buildings may have been permanently injured by washouts and gullies so as to diminish the value of the entire tract or parcel, while in addition there may have been temporary injuries.
In the present case the injury to the soil or real estate seems to have been of a permanent character, the other injuries complained of being injuries to the crops growing on the place and injury to the health of the appellee, Fannie A. Sparks. Hence, the measure of the damages for the injury to the real estate is the difference in its value by reason of the injuries, which is ascertained by proof of the value of the land before and after the same. Chicago, etc., R.R. Co. v. Smith, 6 Ind. App. 262.
Whatever damage was occasioned by injury to the crops should be proved by showing the difference in the value of such crops with and without the injury.
Values, as counsel correctly contend, may be proved by the opinions of witnesses, for these are, after all, but estimates based upon the fact that other .property of a
The appellee seeks to invoke the rule so often declared by the Supreme Court, that a judgment should not be reversed when the merits of a cause have been fairly tried and determined in the court below and the correct conclusion reached. We do not think, however, that this rule can be made applicable. As the jury did not have the proper data for correctly determining the damages,
The motion for a new trial should have been sustained. We do not consider other questions presented, as they may not arise again in another trial.
Judgment reversed.