Lybrand sued Morton Salt Company for damages, alleging, in substance, that the defendant negligently permitted a large rеservoir containing salt water to break, liberating the salt water, which flowed over and settled upon 150 acres of land belonging to plaintiff, destroying its fertility and the vegetation and trees growing thereon and greatly depreciating its value.
Defendant pleaded a general denial.
In response to special issues submitted, the jury found that the defendant had negligently permitted its reservоir to break and overflow plaintiff’s land with the salt water, damaging the same to the extent of $900.
These findings were justified by the evidence and are adopted as our conclusions on the issues involved.
The court also submitted an issue that required the jury to find whether the injury to plaintiff’s land was temporary or permanent. The jury answered that the injury was temporary.
On motion of plaintiff, the court rendered judgment for $900, the amount the jury found the land was damaged.
Appеllant, under proper assignments, urges that the court erred in ignoring the finding of the jury to the effect that the damage tо plaintiff’s land was temporary, and in submitting the case on the theory that the measure of plaintiff’s damages was the difference in its reasonable market value immediately before and immediately after the injury.
This proposition presents the only material question for our consideration.
Our courts have uniformly held, in cases where it is shоwn that, by overflow, fire, or other agency, the roots or sod of native or other perennial grasses, fruit or other trees, grape or berry vines, or the productivity of the soil are impaired or destroyed, that the injury is permanent in nature, for which the owner is entitled to recover, as damages, the difference in the market value of the land before and after the injury. This doctrine is well illustrated in the decision of the Supreme Court in F. W. & N. O. R. Co. v. Wallace,
This instruction was assigned as error. The Supreme Court, in approving the measure of damages appliеd, among other things, said:
“The turf or sod .was a part of the land, and an injury to it was an injury to the land which could be as well mеasured by the difference in the value of the land before the burn and after-wards, as by an inquiry as to the sum which would compensate the plaintiff for any injury to the turf .or sod.
“The measure is the same, whether expressed in the one way or the other. Such an injury is-one in its nature permanent, though it may not be perpetual, and differs from an injury to a growing crop which does not result in any injury to the land as distinguished from the crop.”
To the same effect, see F. W. & D. C. R. Co.v. Hogsett,
The undisputed facts bring the case at bar clearly within the rule announced in the cases just cited. There was no conflict in the evidence as to the nature of the injury to plaintiff’s land, although the evidence conflicted as to its extent, and on this point the testimony of the witnesses ranged from a showing of no appreciable injury to almost a complete destructiоn of the fertility of the soil and all vegetation and trees growing thereon. The injury, as found by the jury, is, in our opinion, as said by Judge Stayton in E. W. & N. Ó. R. Co. v. Wallace, supra, “one in its nature permanent, though it may not be perpetual.”
The statute in rеgard to the submission of special issues authorizes a submission only when “raised by the pleadings and the evidence,” in оther words, to justify its submission, the issue must he raised by both pleadings and evidence; if raised by the pleadings and not by the evidenсe, or vice versa, it should not be submitted. However, if erroneously submitted, the jury’s answer should- be ignored by the court, for (article 2211 [1994-5-7] Rev. St. 1925) the judgment must conform to the pleadings, the nature of the case proved (the evidence), and the verdict of the jury, which necessarily comprehends a verdict based on an authorized submission, under articlе 2189.
The judgment rendered below finds ample support in the pleadings, the evidence, and answers of the jury to issues рroperly submitted.
The evidence raised no issue as to the character of injury to plaintiff’s land, but indisputably showed that such as it sustained was permanent in nature; hence the issue as to whether it was temporary or permanent was unauthorized. This being the case, the court, in our opinion, was well within its discretionary power in correсting the error by ignoring the answer of the jury to the unauthorized issue, and in basing its judgment on the findings of the jury rendered in response tо issues properly submitted. Johnson v. Breckenridge, etc. (Tex. Com. App.)
Cases of the nature of the one at bаr are-•clearly distinguishable from and should not be confused with nuisance eases, where the terms “temporary” or “permanent,” as applied to the injury, is a correct characterization ; for instance, where it аppears that the' nuisance may be voluntarily removed by the wrongdoer or abated at the suit of the injured рarty, the resulting injury is held to be temporary, as distinguished from an injury to the inheritance, and only such damages as have аccrued up to the trial of the action can be recovered. In such a case, the rule for meаsuring damages resulting from a permanent injury would be out of place.
This distinction is apparent from an examinаtion of the following cases: Baugh v. T. & N. O. R. Co.,
We therefore overrule this contention of appellant, and, in view оf our conclusion that the findings of the jury hereinbefore mentioned were sustained by the evidence, all assignments are overruled and the judgment of the court below is affirmed.
Affirmed.