
    Augustus Hartman, Resp’t, v. The Tully Pipe Line Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    Trespass—Damages—Evidence.
    In an action to recover damages to plaintiff’s land by reason of the leakage of salt water from defendant’s pipe in the adjoining highway, which was laid without authority, whereby the shade trees, shrubbery and crops were injured, the measure of damage is the injury sustained up to the time of the commencement of the action, and evidence as to .the value of plaintiff’s premises with and without the pipe line in use is inadmissible.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on thes minutes.
    
      William G. Tracy, for app’lt; Georye H. Sears, for resp’t.
   Parker, J.

The defendant laid a line of pipe in the highway opposite plaintiff’s lands, through which it forced a stream of saltwater. The plaintiff owned the fee of the land to the middle of the highway, and such pipe was laid underground, and upon his-premises. It had been maintained and used for some two years: before the commencement of this action, and was so laid without permission or right on the defendant’s part. During such two-years it had leaked more or less, and discharged salt water or brine through the earth over plaintiff’s premises, thereby injuring-his shade trees, his shrubbery, and the annual products of his-garden. This action is brought to recover damages for the trespass so committed by the defendant. So far as the questions presented by this appeal are concerned, it is conceded that the defendant is a trespasser; but it is claimed that an erroneous measure of damages was adopted by the trial court, and for-that reason a reversal of the judgment is asked. The plaintiff was allowed to testify, first, as to what was the value of the premises at the time the pipe was laid. After giving that value at four or five thousand dollars, he was asked: “ What are they worth at the time of the commencement of this action ? ” Such question evidently calls for their value with the pipe line as it then was,, and the premises subjected to the constant leakage flowing therefrom. This evidence was allowed, under an objection and exception duly taken by the defendant. Evidently, the court adopted an erroneous measure of damages. It proceeded upon the theory that such pipe line, and the constant leakage resulting therefrom, are to continue forever, and that, therefore, the plaintiff is to recover in this one action the total and permanent depreciation which it caused to the market value of his lands. But such is not the condition of affairs.

Notwithstanding his recovery in this action, he might bring others for injuries subsequently suffered; so he might enjoin the defendant from using such line to his injury ; and therefore it is plain that only such injuries as he had suffered at the time this action was commenced should be allowed in this action. The difference in the value of his premises with and without the pipe line in use upon them gives him much more than that, -and clearly is greatly in excess of what his actual injury is. This question is thoroughly examined and settled in the Uline case, 101 N. Y., 98, and a citation of further authorities is unnecessary. We do not mean to decide that the loss in the rental value of the premises prior to the commencement of this action is the only damage for which the plaintiff can recover in this action. Thus, if the salt water actually destroyed trees, shrubbery, or anything ■else upon the premises, or so injured them that the plaintiff had suffered a permanent loss thereby, he may recover for the loss he had so suffered at the time of the commencement of this action, as well as for the injury sustained by the depreciation in its annual use. But, for the erroneous ruling above referred to, a new trial must be granted. Judgment and order reversed on the •exceptions, and a new trial granted, with costs to abide the event.

Hardin, P. J., and Merwin, J., concur.  