
    Edward P. Black, Respondent, v. Highland Solar Salt Company, Appellant.
    
      Negligence—flooding of agricultural land with salt water which destroys willows— the measure of damages is the decrease in the value of the land, not the value of the annual crops destroyed—injury to the roots, when considered.
    
    In an action brought to recover damages resulting from the flooding, in 1897, of the plaintiff's land with salt water from the defendant’s manufactory, it appeared that the plaintiff’s land was planted with willow roots and that such roots live in the ground for many years and that a crop grows and is harvested therefrom every year. The referee found, respecting the value of the willows lost and destroyed in 1897, as follows: One and forty-seven one-hundredths acres, producing four tons per acre, in all five and eighty-eight one-hundredths tons, at §18 per ton, §105.84; loss on same in year 1898, at §20 per ton, §117.60; loss on same in year 1899, at §20 per ton, §117.60; loss on same in year 1900, at §27.50 per ton, $161.70; loss on same in year 1901, at §20 per ton, §117.60; in all, §620.84.
    
      Held, that the damages were estimated on an erroneous theory;
    That if the willows were actually destroyed, roots and all, in 1897, the measure of the plaintiff’s damages was the difference in the value of the land with and without the roots and that no damages could be awarded for the loss of the several yearly crops;
    That, if the flooding in 1897 injured the willow roots, so that there was no crop of value that year, and in 1898 the roots still had some life, but the crop of that year was of no value, and so on to the subsequent years, the condition of the roots all along having been the result of the'flood of 1897, and they finally dying outright, still the damages were to the land, to the roots, and not alone to the crop for any one or more years, and should have been considered and proved as such;
    That, if an attempt were made to recover the value of the willows separate from the land, it would be the value of the willow roots as well as the value of the crop for 1897, and that, when that value was once ascertained, no further recovery could be had.
    Appeal by the defendant, the Highland Solar Salt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 15th day of March, 1904, upon the report of a referee.
    
      W. J. McClusky and S. E. McClusky for the appellant.
    
      Jones, Young & Conway, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

The action was to recover damages for injury to and destruction of the property of plaintiff by the flooding of his land with salt water from the defendant’s manufactory. The referee in his report described the location of the properties of the parties, and found that during freshets occurring in the springs of 1897 and 1900 the plaintiff’s land was flooded with salt water from defendant’s manufactory, which caused damage to willows growing on plaintiff’s land, and stored in his cellar, for which a judgment was directed in the sum of $720.34.

As to the flood of 1897, the finding was that willows growing on the land were lost and destroyed. And as to the flood of 1900, that 80,000 willow slips stored in the cellar were killed and destroyed. These slips were found to be of the value of $1.25 per thousand, the total value being, therefore, $100. The finding as to the value of the willows lost and destroyed in 1897 is as follows: One and forty-seven one-hundredths acres, producing four tons per acre, in all five and eighty-eight one-hundredths tons, at $18 per ton, $105.84; loss on same in year 1898, at $20 per ton, $117.60; loss on same in year 1899, at $20 per ton, $117.60; loss on same in year 1900, at $27.50 per ton, $161.70; loss on same in year 1901, at $20 per ton, $117.60 ; in all, $620.34.

And then there follows a finding that the injuries, damages and loss to plaintiff’s real and personal property was the total of $720.34.

It appears that willow roots live in the ground for many years, and a crop grows and is harvested therefrom each year. If the flood of 1897 destroyed the willows, roots and all, the measure of damages was the difference in the value of the land with and without the willow roots. Apparently the referee, instead of awarding the damages upon this basis, allowed for loss of the several crops of 1897, 1898, 1899 and 1900. This was clearly erroneous if the willows were actually destroyed, roots and all, in 1897. The damage was to the land, and that only could be allowed. Plaintiff could not have damages .to the land and also the value of a crop of willows for one year even, certainly not for four years. (Disbrow v. Westchester Hardwood Co., 164 N. Y. 415.)

If the plaintiff’s claim was that this salt water in 1897 injured the willow roots, so that there was no crop of value that year, and in 1898 the roots still had some life, but the crop of that year was of no value, and so on to the subsequent years, the condition of the roots all along having been the result of the flood of 1897, and they finally dying outright, still the damages were to the land, to the roots, and not alone to the crop for any one or more years, and should have been considered and proved as such.

If an attempt were made to recover the value of the willows separate from the land, it would be the value of the roots as well as the crop for the year 1897, and when that value was once ascertained it would be final. No recovery could be had for any crops lost during the following years. The items for the several years in the referee’s report evidently were for the crops of those years and not for the loss or damage to the roots or to the land. That was not the correct measure of damages.

The judgment must, therefore, be reversed for errors in the reception of evidence as to damages and in fixing the amount of the same.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  