
    Charles H. Young, Resp’t, v. John Hurd et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    
      1. Water courses—Damages for 'decreasing water power—Measure of damages.
    This action was brought by the owner of a mill and land bordering on both sides of the river on which it was situated to recover damages for injury done his water power by the defendants by throwing refuse into the river at a point above the mill. Held, that the diminution of the rental value of the property was the proper measure of damages.
    2. Same—Measure of damages—How ascertained.
    
      Held, that in determining the rental value of the property, the supply of logs available for the work of the mill should be taken into consideration.
    Appeal from a judgment entered on the report of three referees to hear, try and determine who reported in favor of the plaintiff for $585 damages, besides costs.
    
      L. B. Bunnell, for app’lts; Louis Hasbrouch, for resp’t.
   Learned, P. J.

The defendants insist that it was erroneous to assess damages on the theory of the rental value of the premises. But we understand that the diminution caused in the rental value is the proper rule in such a case as this. Colrick v. Swinburne, 105 N. Y., 503; 8 N. Y. State Rep., 172. The defendants say that the supply of logs was limited to less than one month’s run of the mill, and that if necessary the mill must lie still the rest of the year. If this were so, then of course the rental value of the mill, as it would have been without the alleged obstructions, would have been small, and the injury caused by defendants would also have been small.

It seems to us that the objection which the defendants urge is not an objection as to the measure of damages, but as to the referee’s conclusions of-fact. If there were no logs to be had, then the rental value might be little or nothing. And so the defendant Hurd testified that he did not consider the rental value to be anything. The supply of logs would enter into an estimate of the rental value; and if any witness excluded consideration of that supply in making his estimate, the importance of his estimate would be diminished. The estimates of rental value were widely different. The referee took neither extremes. The plaintiff, in his own testimony, stated on what he based his- estimate of rental value. And it is evident that his estimate took in improper-matters, for instance, “what he thought he ought to get.” “ If the mill had cost $5,000, he would have increased it proEortionately.” “ The possibility of logs to saw, etc., entered is mind only in a general way.” Now an opinion of value which this excludes, one of the most important elements is of little weight. The next witness, who speaks on this point for plaintiff Palmer, gives a rental value, and says he assumed there would be logs to saw, and that the mill would be let kept running all the time. The next, Burdick, is not shown to have any knowledge on the subject, and he says: “ I naturally supposed there would be more or less stuff floating down the river.” We need not mention in detail the defendants’ testimony on this point.

We think that it is evident that the plaintiff’s witnesses, in estimating the rental value, gave little or no consideration to the question whether there were any logs to be sawed, or any which could be obtained for that purpose. A mill without logs to saw has not much rental value. Thus the evidence does not justify the conclusion of the referees. For though opinions of witnesses as to value are proper; yet if it appears in forming such opinions the witnesses disregard one of the most important elements, this might almost be called an error of law. At least it very greatly impairs the value of the opinions. As there must be a new trial, we think it best not to examine the question of damages on the other branch of the case: the cost of cleaning out the refuse in the pond, and the duty of the respective parties in regard, to that refuse.

Judgment reversed, new trial granted, referees discharged,, costs to abide event.

Landon and Ingalls, J. J., concur.  