
    Alexander Reichert, Resp’t, v. John Backenstross, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    Aegligence—Flooding lands—Damages.
    In an action to recover damages for injuries caused by the wrongful act of defendant in opening a ditch and letting the water therefrom flow onto the lands of plaintiff, it appeared that such flooding rendered the land useless to grow a crop on that year. Held, that the measure of damages was the value of the use of the land for such year and the cost of filling up the opened ditch.
    Appeal from a judgment of the county court of Onondaga -county, affirming a justice’s judgment upon a verdict of a jury of :$75 damages.
    
      D. F. McLennan, for app’lt; William Kennedy, for resp’t.
   Hardin, P. J.

Plaintiff’s ten acre lot was in part flooded by the wrongful acts of the defendant in opening a ditch and letting the water 'therefrom onto the lands of the plaintiff. There was ample evidence to sustain the allegations in the complaint as to the wrongful acts of the defendant, and plaintiff’s cause of action was amply supported by evidence given before the j ury. After a careful inspection of the evidence it is difficult to discover proof indicative that more than four acres of the plaintiff’s ten acre lot were flooded. Charles Reichert, a son of the plaintiff, was sworn in his behalf, and testified, viz.: “ The water was let in onto the oat field and flooded about half of the lot.” Again he says: u There was probably a third of the ten acres covered with water.”

(2) When the plaintiff was upon the stand as a witness he was allowed to testify, viz.: “ If land had not had the water turned •onto it, it would be worth $14 or $15 an acre. I seeded it and sowed it. It would not be worth enough to pay for the labor, with the water turned on through the ditches.” The appeal book ■states, viz.: “ The above testimony was received under the defendant’s objection to each and every part thereof duly taken as incompetent, irrelevant and immaterial, and not the proper rule or measure of damages.” Thereafter in the course of the cross-examination of the plaintiff he stated: “ The rental value of land is five or six dollars an acre. This land is like the rest of the farm, worth no more per acre.” Anthony Hall was called by the plaintiff and allowed to testify against the objection of the defendant in answer to the following question: “ What would the rental value of this land be per acre if it was fitted for crops for the year 1890, provided it was dry and not flooded ? ” His answer was “ Hine dollars per acre; ” and then he was allowed to answer the following question: “Assuming that the land was fitted on the '27th of April and was flooded, and flooded May 6th and 10th, so as to be covered with water so a crop could not be sown until May 26, 1890, what would be the rental value under those conditions ? ” The question was objected to and overruled, and the witness answered, viz.: “ The land would not be worth anything. You cannot raise a crop of oats upon the land which had been flooded, sowed at that time of the year. Oats should be sown in April as early as you can get them in.”

Lambert Barton testified in behalf of the plaintiff, viz.: “The rental value of this land after being fitted would be worth nine dollars p.er acre.” Then the following question was put to him:. “Assuming this land was flooded April 27th, May 6th and 10th, what would be the rental value? ” Against the defendant’s objection he was allowed to answer, and said: “ The part that was flooded would not be worth anything. This land is loam with clay subsoil. Flooding of such land mákes it hard and unfit for taking the seed. It will dry and crack. Oats should be sown in April. Oats sown after May 20th would be a failure.” The witness Joh testified that it was worth to fill up the ditches each time a dollar.

In Easterbrook v. The Erie Railway Co., 51 Barb., 94, an action, was brought for injuries done to the plaintiff’s premises by water, in consequence of a diversion of a stream from its channel by the-defendants in constructing a culvert; and in that case Smith, J., said: “The measure of damages in that class of cases is the depreciation in the value of the plaintiff’s premises occasioned by the injury resulting from the defendant’s acts.”

In Chase v. The New York Central Railroad Co., 24 Barb., 273,, which was an action brought to recover damages for injuries done to plaintiff’s grounds by water alleged to have been turned onto-the plaintiff’s land, it was said: “ It is proper to charge the jury that the rule of damages in that class of cases is the difference between the value of the plaintiff’s premises before the injury happened, and the value immediately after the injury, taking into the account only the damages which have resulted from the defendant’s acts.”

In Argotsinger v. Vines, 82 N. Y., 309, which was an action for trespass for cutting and removing timber, it was held: “ That, evidence was properly received as to the value of the farm with the timber, and its value after it was cut; and that this difference furnished a proper measure of damages.”

In § 937 of Sedgwick on Damages, it is said : “ In estimating the value of a crop, the prevailing rule seems to be to take its actual value at the' time of trespass, not its probable value, assuming that it would have matured." 8th Ed., vol. 3, p. 50.

If it be assumed upon all the evidence that a fair value of the use of the land for the year 1890 which was lost to the plaintiff by reason of the flooding thereof amounted to nine dollars per acre, then the evidence that indicates that not more than five acres at most were flooded would give as a result of that item, estimated in that mode, forty-five dollars; if to that be added a dollar each time the ditch was filled up, say three times, the damages would be apparently forty eight dollars. It is quite apparent that by reason of the rulings complained of the verdict was excessive. Upon the argument before us the learned counsel for the plaintiff admitted the force of the foregoing view of the case and proffered a stipulation to reduce the damages.

In § 3063 of the Code of Civil Procedure, it is provided that, The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do> ■ not affect the merits. It may affirm or reverse the judgment of the justice in whole or in part, and as to any or all of the parties, and for errors of law or of factand in § 3066 a rule for the award of costs is regulated, and in the fifth sub-division of that section it is provided, “If the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be-awarded to either party.”

Under all the circumstances of the case it seems reasonable to modify the judgment of the county court and of the justice’s court so that there shall be awarded a recovery of only forty-eight dollars damages to the plaintiff, with ten dollars costs and disbursements in the county court; with costs of the appeal to this court to the appellant.

Judgment of the county court modified hs stated in the opinion, and as so modified affirmed, without costs to either party of appeal, to this court.

Merwin and Parker, JJ., concur.  