The opinion of the court was delivered, May 11th 1869, by
Agnew, J.
In general the rule for the measure of damages in *305cases of tort may be said to be that which aims at actual compensation for the injury; and whatever ascertains this is proper evidence to be submitted to the jury: McKnight v. Ratcliff, 8 Wright 168; John B. Douty et al. v. Joseph Bird et al., 10 P. F. Smith 48; Forsyth v. Palmer, 2 Harris 98; Hart v. Evans, 8 Barr 22; Walker v. Smith, 1 Wash. C. C. R. 154; 4 Dallas 206. There are qualifications, however; as'that inadvertent or unintentional injuries, or acts unaccompanied with malice draw after them only their direct and immediate consequences, and not those remote and speculative; while grossly negligent or malicious acts may be the subject of larger damages. In the former the damages are merely compensatory; but in the latter they rest in the sound discretion of the jury, uninfluenced by prejudice or passion. Damages for injuries to property vary also according to the nature of the claimant’s right. The owner of the freehold may undoubtedly recover for an injury which permanently affects or depreciates his property; while a tenant, or one having only a possessory right, may recover for an injury to his use or enjoyment of it: Ripka v. Sergeant, 7 W. & S. 9; Schnable v. Koehler, 4 Casey 181; Robb v. Mann, 1 Jones 305; Williams v. Esling, 4 Barr 486. The court below erred, therefore, in confining the proof of damages of the plaintiffs to the mere use of the water. Being the owners of the property, as well as in its actual possession and use, they had a right to all the damages flowing directly from the tort of the defendant. If, therefore, a permanent injury was created by the lodgment of the tan-bark in the pool of their dam, which actually depreciated the property in value as a water-power, it must affect the price or value of the land to which it belonged; and why should this not be compensated in damages ? It is difficult to give a good reason against it. The plaintiffs in that case have lost just so much in the value of their property by the illegal act of the defendant. Compensation for the diminished enjoyment or use of the property for a certain number of years, is no compensation for the diminished value of the estate itself. The profit of the land must not be confounded with the land itself. If the land were under lease, an injury which diminished its annual profit to the tenant, and also depreciated the value of the property itself, would be the subject of a double action, in .which the tenant and the landlord would each recover the amount of his own loss. Of course when an owner claims in both capacities he cannot be allowed a double compensation for the same loss; so that the damages for use must not represent in any part the damages for the permanent injury. It is the duty of the court to see that one does not overlap the other.
We think the court erred also in refusing to admit both methods of computing the permanent damages, to wit, that which *306measures the damages by the different values of the land, with and without the deposit; and that which measures them by the cost of removing the deposit. It is often difficult for a court to determine the true measure until all the evidence is in. It may turn out that the cost of removing the deposit in a certain case would be less than the difference in the value of the land, and then the cost of removal would be the proper measure of the damages; or it may be that the cost of removal would be much greater than the injury by the deposit, when the true measure would be the difference in value merely. If there be different modes of measuring the damages, depending on the circumstances, the proper way is to hear the evidence, and to instruct the.jury afterwards according to the nature of the case. The argument of the defendant in error is, that the injury is only temporary, the tan-bark being light and removable by freshets. But this assumes the fact. The plaintiffs declared upon the deposit as an injury to their freehold, alleged it to be permanent in its character, and offered evidence to this effect. The fact was one to be decided by a jury; but in assuming that the injury was only to the use of the property for a certain period of time, the court withdrew the fact of permanency. If the deposit was of a temporary character it was the subject of proof, and the defendant’s right to an instruction to the jury to confine the damages to the use during its temporary existence, depended on the finding of the fact. The extent of the injury was also a fact for the jury. Whether temporary or permanent, the defendant is liable only for the tan-bark cast into the stream by him, which found its way into and lodged in the pool of the dam. If others above on the stream contributed to the deposit of tan bark or other matter in the pool, the defendant cannot be held liable for their injury, but his deposit must be separated by means of the best proof the nature of the case affords, and his liability ascertained accordingly. This point has been discussed and decided at January Term 1868, in the case of The Little Schuylkill Nav. and Railroad and Coal Co. v. Richards’ Adm’r., from Schuylkill county: 7 P. F. Smith 142.
Judgment reversed, and a venire facias de novo awarded.