Maggie A. Senglaup, Respondent, v. The Acker Process Company, Appellant

Maggie A. Senglaup, Respondent, v. The Acker Process Company, Appellant. Fourth Department, July 9, 1907. Nuisance — injury to lands by gas—-measure- of damages in action. at law. . In an action at law for damages caused by a -nuisance jn maintaining a factory for manufacturing bleaching powder, the fumes from which destroyed the vegetation on.the plaintiff’s lands and corroded metal in the house, the damages are limited to such as accrued before the commencement of the action. On the question of damage the plaintiff, may show -the difference between the market value of the premises before and after the injuries so as to include all damage to date of action. But the defendant is entitled to show any diminution in the value of the premises from natural causes and also the dost of restoration of the property injured. Hence, it is error to exclude expert testimony showing the cost of replacing the injured vegetation. In such action there are two rules of damage: First-, the difference between the market value of the premises before and after the injuries; second, if the defendant can show that the restoration of the premises to their former Condition is reasonably possible, and the cost of such restoration is, less than the damage under the former rule, the defendant is entitled t.o have the latter method of estimating damages considered by the j ury who are to determine which is the more feasible. - Appeal by the defendant, The Acker Process Company, from a judgment of the Supreme' Court in favor óf the plaintiff, entered in the office of the clerk*of the county of Miagara on the 27th day of June, 1906, upon the verdict of '& jury, and also from an order entered in said clerk’s office on the 2d day of July, 1906, denying -the defendant’s motion for a new trial made upon the minutes. Alfred W. Gray, for the appellant. P. F. King, for the respondent. [MAJORITY — Spring, J.:] Spring, J.: The plaintiff owned a house and lot at the corner of Third and Main streets in the city of Niagara Falls. ■ The defendant was engaged in the manufacture of bleaching .powder and other products by the excessive heating of lime and salt, producing chlorine gas. Its plant was only a block distant from the premises of the plaintiff and her claim is that the escaping gas pervading the atmosphere about her lot, destroying her shade trees, plants, shrubbery' and vegetation, corroded the nails in the clapboards and shingles in her house, and the door knobs, arid all the metal in the house with which it came in contact, and otherwise injured the dwelling. The' destructive character of the gas and the injuries to the premises of the plaintiff are not controverted; and the only question up for review relates to the damages. " Upon the trial the plaintiff gave" evidence of the market value of the premises before and' after the injuries were sustained. We think, under the evidence of the plaintiff, this was a proper rule of damages, limited "as it was to injuries occurring prior to the commencement of the action. (Argotsinger v. Vines, 82 N. Y. 308; Morison v. American Tel. & Tel. Co., 115 App. Div. 744, 747.) Under the proof in the case the rule adopted was in effect the difference in value with and without the injuries sustained. The escaping gas was a continuing injury to' the premises for some time prior to the commencement of the action.. In order, therefore, to include all damages accruing to that date it was necessary to prove the value before the infliction of any injuries, and at the time the action was commenced-, on the principle maintained by the plaintiff and accepted by the trial court. If any other elements affected the value, like' natural wear and tear, or increase by a rising marketable value, such item should he proven and considered in arriving at the just estimate. The defendant should only be required to stand the loss occasioned by its unauthorized invasion of the premises. The action was at law and the damages must be limited to such as accrued before it was commenced, for .if any subsequent damages were inflicted they might be made the foundation of another action. . Within this rule also the diminution in value must be the proximate' result of the gas which came from the defendant’s manufactory, and hot the natural depreciation of the premises from use, or to shrinkage in value from any other cause." The defendant attempted to show' by experts that the shade trees could be replaced, and also the cost of -restoration. This evidence was excluded by the court on the ground that it was not the proper measure of damages, and that he intended to adhere to the rule of diminution in value adopted by the plaintiff. We think the exclusion of this evidence was error requiring the reversal of the judgment. There are two rules of damages competent in this case. First, the one adopted by the plaintiff; second, if the defendant was able to show that restoration of the premises to their former condition was reasonably possible and the cost of reparation was less than by the other method, it was entitled to have that mode of estimating the damages considered by the jury: (Hartshorn v. Chaddock, 135 N. Y. 116.) It does not follow because proof of the-cost of restoration so far as practicable may be given that such proof establishes inflexibly the measure of damages. Proof is competent under both methods and tile jury are to determine which, in justice to both parties, is the most feasible and the least expensive. In Hartshorn v. Chaddock (supra, 122) the court said: “ The rule seems to be that when the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its former condition is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages. On the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages, the rule of avoidable consequences requiring that in such a case the plaintiff shall diminish the loss as far as possible.” And again: “ Therefore, proof of the cost of restoring the land to its former condition, and proof of the diminution in the market value of the lot, was in this case alike admissible. There were two methods of measuring the damages depending upon circumstances, and all competent evidence offered should have been received by the' referee, and hence it was not error to admit proof of the cost of restoring the soil to the condition it was in before the overflow.” It may not have been practicable to show complete restoration as to all the .items of damage established. Eone the less, either .party should be permitted to give proof of the cost of reparation so far as feasible. If substantial repair can be made as to many items composing the damages, the defendant may give that proof and adopt the theory of diminution in- value as to the other items. We think also it was competent to prove the rental value of the premises prior to the commencement of the action. (135 N. Y. 122, supra.) The judgment sliould'.be reversed. All concurred; Kruse, J., in result only ; Kobson, J., not sitting. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event upon questions of law and fact.'