
    Mink v. The New York Central Railroad
    (No. 2)
    
      Michael J. Wherry, for plaintiffs.
    
      John Q. Stranahan, for defendant.
    September 26, 1963.
   Rodgers, P. J.,

The court has held a pretrial conference where the question was raised of the proper measure of damages for the loss by fire of mature Christmas trees of merchantable quality while on the stump rooted in the soil but ready for the market place. The court adopts the Restatement of Torts, Volume 4, §929 as the law of the case. It holds that:

“Where a person is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction in value, the damages include compensation for

(a) at the plaintiff’s election

i. the difference between the value of the land before the harm and the value after the harm or the cost of restoration which has been or may be reasonably incurred, or

ii. if a separable portion of the land has been damaged, the loss in its value____”

In short, the proper measure of damages is the value of the trees destroyed by the fire calculated with reference to the date of the nearest practicable market. Plaintiff may not recover for loss of potential profit.  