Hurd v. Barnhart

53 Cal. 97

Opinion

By the Court :

The Court charged that the measure of damages was what the use of the property was worth to the plaintiff during the time that he was deprived of it; and that in ascertaining the value the jury should consider how the plaintiff could and would have used the property had it not been taken from him.

This was substituting a speculative and peculiar measure of damages for the true rule, which, as applied to the case, was what the use of such property could have been procured for— in other words, the market value—and was erroneous.

The sixth instruction, given at the request of plaintiff, was erroneous in requiring the defendant to prove a special agreement for pasturage on land not included in the lease.

Judgment and order reversed, and cause remanded for a new trial.