138 Mass. 70 | Mass. | 1884
The gist of the plaintiff’s action is the breaking and entering of his close. The other averments of the declaration only affect the damages. Manners v. Haverhill, 135 Mass. 165.
The measure of damages is the injury to the plaintiff’s estate caused by the trespass ; and when, as in this case, the damages are occasioned by placing upon the land “ a large quantity of earth,” the damages are not necessarily what it would cost the plaintiff to remove the earth from the land. Holt v. Sargent, 15 Gray, 97. In determining the extent of the injury to the plaintiff’s land, the court had a right to consider the benefits, if any, arising from placing the earth upon the land. An allowance for such benefits is not in the nature of recoupment or set-off, but a method of determining the actual damages sustained. Luther v. Winnisimmet Co. 9 Cush. 171. Howes v. Grush, 131 Mass. 207. Jones v. Gooday, 8 M. & W. 146.
Upon the facts found by the assessor, the court was warranted in entering judgment for the smaller sum.
Judgment affirmed.
