13 Mo. App. 70 | Mo. Ct. App. | 1882
delivered the opinion of the court.
The plaintiff and defendant were adjoining proprietors of real estate. The defendant, in excavating on its own lot for sand, dug so near the plaintiff’s lot as to deprive the ground of its natural lateral support, and some of it fell into the excavation. For this the plaintiff brought this action, and had a verdict and judgment for $600. The questions which we are invited to consider relate to the measure of damages.
This instruction is complained of on the ground that the court should have directed the jury that the measure of the plaintiff’s damages was the value of the earth which fell away from the line of the plaintiff’s lot. It is believed that there is no modern authority for such a rule. Such a rule would be clearly against reason. It would afford no substantial compensation to one who has suffered a substantial injury. There is no substance more plentiful than the soil on which we walk, and it cannot be shown that a quantity of loose dirt has any substantial value. It may, indeed, have a very considerable value to a proprietor when resting in its natural state in a lot of ground owned by him ; and .this, it is believed, is the value which is contemplated by the old rule in question. But the enunciation to a jury of this rule, without qualification, would be misleading, for it
We do not gather the force of the criticism that this instruction was erroneous because it had the effect of telling the jury that the measure of the plaintiff’s damages was the diminution of the value of the entire property, caused by the injury. His property consisted of but one lot, and we do not see how this can be severed in considering the damage which it has sustained, unless we fall back upon the old idea already stated, that the measure of damages is the value of the dirt which fell away from the plaintiff’s lot and upon the defendant’s lot, which dirt the defendant consequently acquired tortiously from the plaintiff. The case of Gillmore v. Driscoll (122 Mass. 199) is not, as we read it, authority for such a position. There the court gave ‘‘ damages occasioned to the plaintiff by loss of, and injury to, her soil alone, caused by the acts of the defendant, amounting to $95.” It seems to us that a distinction between an injury to the plaintiff’s soil and an injury to his lot would be quite too refined for the purposes of practical justice; and the same, we think, may be said of a distinction between an injury to the plaintiff’s soil and an injury to his premises caused by the falling of his soil into his neighbor’s pit. It is a general rule that, for permanent injuries to property, whether real or personal, the plaintiff is entitled to recover the depreciation in value caused by the injury. Shelbyville, etc., R. Co. v. Lewark, 4 Ind. 471; Ryan v. Lewis, 3 Hun, 429; Easterbrook v. Erie R. Co., 51
The same consideration, we think, disposes of the objection that the court erred in admitting evidence as to the general decrease in value of the plaintiff’s entire premises caused by this injury. We think that in estimating the difference in value of the land before and after the injury, the value of the entire lot and the improvements might as well be taken as the basis as the value of the ground alone; for although the injury was not to the buildings, but to the ground, yet a proper estimate would produce the same result upon either basis.
The precise application of the rule which we have now under consideration was before the Queen’s Bench Division in 1878, in the case of Lamb v. Walker (3 Q. B. Div. 389). It was held by Mellor and Manisty, JJ., that, in an action for an injury to the plaintiff’s land and buildings by the removal of lateral support, all damages which may be reasonably anticipated as likely to flow from the act done must be embraced in the recovery, for they cannot form the subject of future actions. Lord Cockburn, C. J., dissented. He was of opinion that each subsequently recurring damage would furnish a separate cause of actiou. This principle of embracing all damages, present and prospective, which it may reasonably be presumed will flow as a direct and natural consequence from the act done, in one assessment or award, applies in cases of the assessment of damages where private property is
The judgment is accordingly affirmed.