Whitbeck v. New York Central Rail Road
1862 N.Y. App. Div. LEXIS 77
N.Y. Sup. Ct.
1862
Check Treatment

By the Court,

Johnson, J.

Thе only question in this case, of any importance, is in respect to the damages which the plaintiff was entitled to recover for the fruit trees destroyed by the fire. I am of the opinion that the judge at the circuit was clearly right in instructing the jury that the plaintiff was entitled to recover the value of the trees, as they stood upon ‍‌​​​​​‌‌‌​​‌‌‌‌‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​​‍his land, at the time of the fire, if he was entitled to recover at all. The object of an action of this kind is to obtain compensation for an actual loss; and this еnd is perfectly attained when the value of the thing destrayed is recovered by thе owner. The defendant’s counsel requested the judge to instruct the jury, that the plaintiff *647сould only recover the diminished value of the orchard lot, by reason of the destruction of the trees. This the judge refused, and I think rightly.- It is true that the trees in question were real estate, and in one sense part and parcel of the land itself. But so arе buildings, and fences, and grass, and trees of all kinds while growing upon the land. The true rule I cоnceive to be this: that if the thing destroyed, although it is part of the realty, has a valuе which can be accurately measured and ascertained,- without referеnce to the value of the soil in which it stands, or out of which it grows, the- recovery must bе for the value of the thing thus destroyed, and not for the difference in the value of thе land before and after such destruction. And it can make no difference, in this respect, whether the action is brought to recover for the destruction of a single tree, or all the trees in anoorchard. There is no intrinsic difficulty, as I concеive, in estimating ‍‌​​​​​‌‌‌​​‌‌‌‌‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​​‍the value of a fruit tree growing upon land, although it has strictly no market ot commercial value, as a tree, independent of the land which sustains it. In this respect, however, it does not differ materially from buildings and other fixtures. But it does differ from trees which are usually converted into timber, or fire wood, and which are frequently sоld as they stand, for that purpose, or nursery trees which are grown for market. The diffеrence is this: In the one case the value consists chiefly in the thing itself, as a cоnvertible and marketable commodity, while in the other, the value consists chiefly in the quality and quantity of its average annual products, and it is capable of being lеased, as much as a field or a dwelling. The calculation by which the Yalue would be determined in the two cases would be somewhat different, but, for aught I can see, it сould be determined by the opinion of competent witnesses in the one case as well as the other.

The objection to proving the value of the treеs in question by the opinion of the witness ‍‌​​​​​‌‌‌​​‌‌‌‌‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​​‍Oook, was not, I think, well taken, if the witness was competent to give an opinion *648upon the subject. It was objected, by the defendant’s counsel, that the witness had no knowledge of these particular ‍‌​​​​​‌‌‌​​‌‌‌‌‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​​‍trees, and wаs therefore incompetent, even if opinion was competent evidеnce by which to establish value.

[Monroe General Term, June 2, 1862.

Johnson, Welles and Campbell, Justices.]

The witness was shown, I think, to be qualified to express an opinion on the subject. He lived in the same town, was a nurseryman, and well acquaintеd with the fruit business, and had heard the plaintiff testify in relation to the kind, quality and product of the trees, but had no particular recollection of the orchard, although hе thought he had seen it. It was not necessary that he should actually have seen, оr been familiarly acquainted with, the trees in question. It was enough that he was acquаinted with the fruit business in that ‍‌​​​​​‌‌‌​​‌‌‌‌‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​​‍neighborhood, and the value of similar property there. He was, I think, as competent to express an opinion in respect to the valuе of the trees, after learning from other witnesses what kind of trees they were, and the quality and amount of fruit yielded by them generally, as he would have been to express an opinion as to the value of the fruit per barrel after ascertaining its condition and quality. The opinion, perhaps, would not be as satisfactory in the one case as the other, but if it was competent as evidence, that is enough.

I am of the opinion that there was no error either in the charge, or in the refusal to charge, as requested, or in the rulings upon the trial, and that the judgment should be affirmed.