
    (71 Hun, 367.)
    HARTMAN v. TULLY PIPE-LINE CO.
    (Supreme Court, General Term, Fourth Department
    September 23, 1893.)
    Trespass—Laying Pipe in Street—Injury to Adjoining Lot—Damages.
    In an action for injuries to plaintiff’s premises, resulting from the leakage of salt water from a pipe laid by defendant, without authority, in the adjacent highway, in which plaintiff owned the fee, the measure of recovery is the damage sustained up to the time of the action, and evidence as to the permanent depreciation in the value of the premises because of the presence of the leaking pipe is inadmissible.
    Appeal from circuit court.
    Action in trespass by Augustus Hartman against the Tully Pipe-Line Company. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial on the minutes, defendant appeals.
    Reversed.
    Argued before HARDIN, P. J., and MERWIN" and PARKER, JJ.
    William G. Tracy, for appellant.
    George H. Bears, for respondent.
   PARKER, J.

The defendant laid a line of pipé in the highway opposite plaintiff’s lands, through which it forced a stream of salt water. 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 were 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, 4 N. E. Rep. 536, 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. All concur.  