
    Andrew A. Lommeland vs. St. Paul, Minneapolis & Manitoba Railway Company.
    July 12, 1886.
    Measure of Damages — Destruction of Growing Crops. — In an aetioj for damages to growing crops, the measure of the damages is compensa tion for the value thereof in the condition they are in at the time of th injury.
    Same — Evidence of Value. — Opinions of competent witnesses in referen to the extent of the injury and the value of the growing crops may be r< ceived, and also the average product or yield of like crops under similal conditions, and, within reasonable limitations as to time, the ayera¡ market value of such grain, less the expense of harvesting and marketin
    Appeal by defendant from a judgment of the district court for Becke| county, where the action was tried before Stearns, J., and a jury.
    
      R. B. Galusha and J. Kling, for appellant.
    
      0. Mosness, for respondent.
   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.

Mitchell, J.,

(dissenting.) I concur in the result, but not in what is said in disposing of appellant’s third assignment of error. The ruling complained of, if error, was error without prejudice, because the question propounded to the witness was not answered. But I do not think that, for the purpose of ascertaining the value of the growing crop at the time of the injury, it is competent to prove mat-, ters occurring subsequently, but which were at the time unknown and incapable of being ascertained. In other words, I do not think that, for the purpose of enhancing his damages, the plaintiff could show that, as matters subsequently developed, if this growing crop had not been destroyed, it would have produced a large yield, or brought a large price, any more than defendant, for the purpose of reducing the# damages, could show that if it had not destroyed the crop it would# have been subsequently destroyed by a hail-storm or other casualty,# or that the grain would have brought a very low price the following# fall and winter. I think the measure of the damages, which is the# value of the crop at the time of the injury, should be determined by# evidence of facts existing at the time, and the judgment of men, based# on experience, applied to those facts, the same as if the trial had oc-H curred the same day the crop was destroyed. H

Dickinson, J.,

{dissenting.) I concur in the foregoing dissent. The# crop was destroyed while it was yet immature. The question to beH determined was the market or marketable value of the property at that time. The opinion seems to me to confound or to disregard the essential distinction between the proof of facts going to show the market value at that time, and while the crop was subject to the contingencies which must attend its further growth and harvesting, as well as those which might affect future prices, and the proof of the subsequent value of grain in market, after those contingencies which before had necessarily depreciated the value had passed.  