delivered the opinion of the Court. The general principle upon which damage is to be assessed, in favor of one whose property has been appropriated to public use, is extremely well settled ; it must be an adequate compensation, a fair equivalent, a just indemnity. But the application of this principle, plain and simple as it is, to particular cases, is often attended with difficulty, on account of the great diversity of circumstances attending them. This case was formerly before the Court, and the result is reported in 20 Pick. 156. It was again submitted to a jury, upon the grounds therein stated, and a verdict was returned for the complainant for about $ 3000. Two exceptions are now taken to the verdict, on the part of the city. The first is, that the jury were instructed, that amongst other items of damage, they might, in addition to the expenses of the removal of the go.ods from the store and removal back, allow the complainant for the loss of the earnings and profits of his business, whilst it was necessarily suspended, or the rent of another store in the mean time for carrying it on.

The Court are of opinion that this direction was right. Conformably to the principle laid down in the former case between • ■these parties, the direction was intended to exclude imaginary or speculative losses of the complainant, arising from the removal, occasioned by customers leaving him and resorting to other stores, loss of good-will, run of custom and the like. It was intended to embrace that average rate of earnings which a *431man in business, with a stock of merchandise on hand, maybe supposed temporarily to lose, for the actual time that his business is necessarily suspended, taking into consideration the nature of the business and season of the year. If it would be on the whole a less damage, considering the probable length of time that the business would be suspended, the season of the year and the nature of the business, to take another store in the neighbourhood and continue the business, then instead of the loss of earnings during such suspension, it would be most beneficial, both to the merchant and to the city, who must pay the actual damage, to allow the rent of another store, and the necessary expenses.

But it is contended that the jury allowed both, which was contrary to the direction. We think this does not appear, taking into consideration the verdict as they have returned it, and the memorandum in which they made their computations. The jury were directed that they were not to allow both loss of daily earnings during the period of necessary suspension, and the rent of another store too. And it does not appear that they did. But it was within the spirit and intent of the rule prescribed to them, though not perhaps of sufficient importance to be specially stated in the report, in addition to the rent of another, store, to allow for loss of earnings for the few days occupied in the removal to and from the store, and this we think is all that the jury have done on that subject.

The other objection is, that the jury were directed to allow the whole estimated cost of rebuilding a new wall on the side of the store next to the street, although the complainant was tenant of part of the tenement only, to wit, of the lower floor and cellar, and that for a term of three years. The Court are of opinion that this direction was wrong ; hnd in this opinion, upon some consideration, I concur.

The damage actually suffered by the complainant, was the actual loss of the use of his tenement, for upwards of two years during which the store was suffered to remain unrepaired and unfit for occupation for any purpose, and until it was taken down and rebuilt by Parks, the landlord. But inasmuch as this had been so left for an unnecessary length of time, for which the city were not responsible, it was considered and decided *432by the Court, in the former case, that the complainant could not recover his whole rent for that long period. Then the question was, how could he have indemnified himself, had he acted promptly and according to his legal rights. The obvious answer was, that he might have built a new wall, and resumed the occupation of the tenement, in its diminished dimensions ; and this was the least expensive mode in which he could probably have obtained indemnity. This then was the hypothetical case upon which the damages were estimated, and one question was, what would it have cost him to rebuild the wall. Now as it must have been carried up to the roof, in order to protect his own premises, and as he could have no legal claim for contribution, either from the tenants of the upper tenements or from the ground landlord, he must have borne the whole expense himself, and therefore it seemed reasonable that he should now have a right to claim that whole expense from the city. But I am satisfied, on reflection, that this last conclusion was a non sequitur. It is true that he must have borne the whole expense himself, and that he would have had no claim for contribution ; and therefore, if he had in fact built the wall, he would have been entitled to recover' the whole cost from the city. But he did not in fact build the wall, and the difference to the city is this ; if he had proceeded at once, as it was hypothetically assumed, in the estimate of damages at the trial, that he might have done, then the wall would have enured to the benefit of the upper tenants and of the ground landlord, and would pro tanto have diminished their claim of damages upon the city. But inasmuch as the complainant did not in fact put up the wall, but left the other parties interested in the estate, to make their full claims for damages, on the city, we think the complainant can only recover such proportion of the estimated expense of the wall, as his interest bore to the whole valuti of the estate, upon an equitable principle of apportionment. This principle being applied to the case of each of the parties claiming damages, neither of whom did the service of putting up the wall, for the common benefit, the city will pay and the several parties will receive a fair indemnity.

The jury in their estimate, having been requested to distin*433guish what proportion of the cost of the wail was applicable to the premises of the complainant, and what proportion to the second and third stories, have done so, putting down $ 325 as the proportion to the lower floor and cellar, and $ 125 each to the second and third stories. The two sums therefore of $ 125, making $ 250, with the interest, must be deducted. Of the $ 325, such proportion ought to be allowed to the complainant, as bis leasehold interest bears in value to that of the reversion, and the balance, with the interest thereon, to be deducted from the verdict. If, for instance, the value of the leasehold was to the whole estate, a third, fourth, fifth or any other proportion, that proportion of $ 325, and the interest, is to be allowed to the complainant, and the balance to be deducted from the verdict as it now stands. This proportion can probably be agreed on by the parties, or if they prefer, an assessor may be appointed to settle that single question, upon which the verdict may be amended.

By a provision in the Revised Statutes, which have been passed since these proceedings have been commenced, the damages for the whole are to be assessed, and where one is entitled to an estate for life or years, and another to the remainder or reversion, the damages shall be equitably apportioned between them. Revised Stat. c. 24, § 12. This will tend for the future to prevent one of the difficulties which have been felt in the present case, arising from the necessity of settling the damages of each claimant separately.