Lommeland v. St. Paul, Minneapolis & Manitoba Railway Co.

29 N.W. 119, 35 Minn. 412, 1886 Minn. LEXIS 170

• Court: Supreme Court of Minnesota
• Decided: July 12, 1886
• Status: Published

Opinions

Vanderburgh, J.

This action is brought to recover damages fc| injuries to plaintiff’s growing crops by the flowing of his land, allege to have been caused by ditches dug by defendant to drain its roaj bed. In such cases the general rule appears to be that the damages are to be estimated'as of the time of the injury, and the measure of damages is compensation for the value of the crops in the condition <key are in at that time. 3 Suth. Dam. 381, 382; Richardson v. Northrup, 66 Barb. 85; Folsom v. Apple River, etc., Co., 41 Wis. 602, 609. In applying this rule a considerable latitude of inquiry is per-nissible from the nature of the case. The estimate must be based argely upon the condition, stage of growth, and promise of the grain, md the capacity of the land to produce crops; and, in addition to he opinions of witnesses qualified to speak in reference to the extent if the injury and of the value of the growing crop in its then condi-ion, we think it would be proper to receive evidence of the average iroduet or yield of like crops upon the same and other lands in the leighborhood, under like circumstances and conditions, and also the .verage market value of such grain, within reasonable limitations as 0 time, and the expense of harvesting and marketing, to be submitted to the jury under proper instructions by the court. If the es-imates are extravagant, the evidence may be sifted upon cross-ex-mination and controverted by witnesses. Folsom v. Apple River, etc., Co., supra; Whitbeck v. N. Y. Cent. R. Co., 36 Barb. 644; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 327; Allison v. Chandler, 1 Mich. 542; Williams v. Currie, 1 C. B. 841. The court therefore roperly admitted evidence tending to prove the average amount of heat and oats per acre usually raised on these or similar lands in íe vicinity during the years in question. This disposes of the ap-filant’s first and second assignments of error.

The third is that plaintiff was permitted to inquire as to the mar)t value of wheat and oats in the fall and winter of 1881. We think íe testimony was admissible. Damages were claimed for 1881 and 382. Evidence, in such eases, may properly be received of the genal or average market price at the place, and during the usual sea-■n, of marketing the same crop, if, at the time of trial, it can be Bown. All estimates must include and make allowance for the risk ■ the growing crop, but may also include the reasonable probability I its coming to maturity, and its value when so matured, and that ■will be of the average value of such crops; and, where the evidence develops with reasonable certainty the average price of the matured grain for that year during the marketing season, it becomes an element which the jury may consider in their estimate of the damages to the then growing crop in arriving at a conclusion as to the amount of compensation which the plaintiff may be entitled to for crops injured or destroyed. Armstrong v. Smith, 44 Barb. 120. This would seem to follow from the rule adopted in Goebel v. Hough, 26 Minn. 252, (2 N. W. Rep. 847,) and Miss., etc., Boom Co. v. Prince, 34 Minn. 71, (24 N. W. Rep. 344.)

The fourth and last assignment of error appears to have been abandoned by the appellant on the argument, and the point involved is not therefore considered.

Judgment affirmed.