for embezzlement by the former of the proceeds of property of which he has taken possession under a regular appointment even though the bill brought therefor was subsequently dismissed for want of jurisdiction. So a surety is liable on a bond running to the plaintiff in an action in which the receiver is appointed, where it is good as a common-law bond even though it does not conform to the statutory requirements.9

(Ky. 1900), 55 S. W. 430; 56 S. W. | Alderson (U. S. C. C. A. W. Va.), 39 C. C. A. 609; 99 Fed. 489.

151.

8 Baltimore Bldg. & L. Assn. v.

• Carl v. Meyer, 51 App. Div. 5; 64 N. Y. Supp. 1077.

2165

TITLE X.

WRONGS AFFECTING REALTY, ITS POSSESSION OR INTERESTS THEREIN.

CHAPTER LXXI.

WRONGS AFFECTING REALTY, ITS POSSESSION OR INTERESTS THEREIN-GENERALLY.

§ 2114. Injuries to real property generally-Trespass— Waste. The measure of damages in an action for injury to real property is generally a recovery for the actual loss sustained. So in an action to recover for a permanent injury to real property the measure of damages will be the difference between the value of the property before and after the injury.?

1 Worcester v. Great Falls Mfg. | N. U. & S. W. R. Co., 70 Minn. 153; Co., 41 Me. 159; Luther v. Winnisim- 72 N. U. 971; St. Louis Trust Co. v. met, 9 Cush. (Mass.) 171. Bambrick, 149 Mo. 560; 51 S. W. 706;

2 Stoudenmire v. DeBardelaben, 85 | Housee v. Hammond, 39 Barb. (N. Ala. 85; Brown v. Woodliff (Ga.), 15 Y.) 89; Owens v. Missouri Pac. R. Co., S. E. 491; Junghlum v. Minneapolis 67 Tex. 679; 4 S. W. 593; Fort Worth

And this is the measure of damages in an action to recover for waste. And where an action is brought to recover for an injury to real property extending over a considerable period of time, it is decided that the fact that during a part of such time the plaintiff occupied the property jointly with another, will not prevent a recovery by the former of such damages as accrued during the period of joint occupation. Again, in estimating the damages for an injury to land the use to which the land may be put for any lawful purpose is declared to control and not the value if used for some purpose other than that to which it was applied or desired to be used by its owner.5 So the damages in an action for injury to land should not, it is held, be proved by evidence as to what the property cost the plaintiff; as to its value some time before the injury; the rent received before and after; and the value after such injury. But where there has been an injury to a part of the realty and it has a determinable value of its own apart from that of the realty, it has been decided that the former will constitute the measure of damages and not the difference in value as has just been stated. And it has also been determined that where the cost of restoring property injured to its former condition is less than the diminution in the market value of the entire property, the measure of damages will be the cost of restoring the same. So the cost of filling up ditches which have been dug by a trespasser on the land of the plaintiff may be the proper measure

& D. C. R. Co. v. Hogsett, 67 Tex. 685; 4 S. W. 365; San Antonio & A. P. R. Co. v. Horkam (Tex. Civ. App.), 45 S. W. 391; Missouri, K.& T. R. Co., v. O'Connor (Tex. Civ. App.), 51 S. W. 511.

|

5 Ft. Worth & N. O. R. Co. v. Wallace, 74 Tex. 581; 12 S. W. 227; 40 Am. & Eng. R. Cas. 248.

Kansas City v. Frohmerk (Kan. App. 1900), 62 Pac. 432.

7 Whitbeck v. New York, etc., R.

3 Stoudenmire v. DeBardelaben, 85 | Co., 36 Barb. (N. Y.) 644. Ala. 85; 4 So. 723; Perdue v. Brooks, 84 Ala. 459; 5 So. 126; Field v. Tate, 57 N. J. Eq. 632; 42 Atl. 742, aff'g 57 N. J. Eq. 53; 40 Atl. 206; Cole v. Bickelhaupt, 64 App. Div. (N. Y.) 6; 71 N. Y. Supp. 636; Nelson v. Churchill (Wis. 1903), 93 N. W. 799. See subsequent sections in this chapter, and sec. 2182, herein.

Branch v. Doan, 17 Conn. 402.

8 Parish v. Baird, 160 N. Y. 302; 54 N. E. 724; Hartshorn v. Chaddock, 135 N. Y. 116; 31 N. E. 997; 47 N. Y. Supp. 838; 17 L. R. A. 426; Larsew v. | Oregon R. & Nav. Co. (Ore.), 23 Pac. 974; 8 R. R. & Corp. L. J. 150; Gift v. Reading, 3 Pa. Super. Ct. 359; 40 W. N. C. 164; Mellick v. Penn. R. R. Co., 203 Pa. St. 457; 53 Atl. 340.

of damages where the injury can be so abated. And treble damages are in some cases recoverable by statute for injury to land.10 Again where the injury is not a permanent one but only results in a loss to the plaintiff for a limited time, the measure of damages may then consist of the decrease in the rental value." It has, however, been decided that damages for loss of rents are not recoverable unless specially alleged.1 And where by the acts of different persons entirely unconnected with each other, there is an injury to the land of another, the latter cannot recover the whole damage in an action against one of them.13

§ 2115. Same subject continued.-The measure of damages in an action of trespass should generally be in the nature of a compensation for the injury sustained." And it has been determined that interest on the amount awarded may be allowed from the time of the trespass.15 Damages which accrue after the commencement of an action for trespass may also be recovered where they are the result of the original trespass,16 though proof of damages prior to the inception of plaintiff's 12 Parker v. Lowell, 11 Gray (Mass.),

Doss v. Billington, 98 Tenn. 375; 39 S. W. 717.

10 Glenn v. Adams (Ala. 1901), 29 So. 836; Longyear v. Gregory, 110 Mich. 277; 68 N. W. 116; 3 Det. L. N. 354; Alt v. Grosclose, 61 Mo. App. 409; 1 Mo. App. Rep. 645; Humes v. Proctor, 73 Hun (N. Y.), 265; 57 N. Y. St. R. 284; 26 N. Y. Supp. 315; Starkweather v. Quigley, 7 Hun (N. Y.), 26; Willard v. Warren, 17 Wend. (N. Y.) 257; Oregon & C. R. Co. v. Jackson, 21 Ore. 360; 28 Pac. 74; Davis v. Cotey, 70 Vt. 120; 39 Atl. 628. 11 Jacob Tome Inst. v. Crothers, 87 Md. 569; 40 Atl. 261; Baltimore & O. R. R. Co. v. Boyd, 67 Md. 32; Key v. Collinan, 78 App. Div. (N. Y.) 584; 79 N. Y. Supp. 778; Mortimer v. Manhattan Ry. Co., 29 N. Y. St. R. 262; 8 N. Y. Supp. 536; Irwin v. Nolde, 176 Pa. St. 594; 35 Atl. 217; 39 W. N. C. 33; 35 L. R. A. 415; Whipple v. Wansuck Co., 12 R. I. 321.

353.

13 Wallace v. Drew, 59 Barb. (N. Y.) 413.

14 Bateman v. Goodyear, 12 Conn. 575; Baltimore, etc., R. R. Co. v. Blocher, 27 Md. 277; Hueston v. Miss. & R. R. Boom Co., 76 Minn. 251; 79 N. W. 92; Delaware & A. T. & T. Co. v. Elvins (N. J.), 43 Atl. 903; Ives v. Humphreys, 1 E. D. Sm. (N. Y.) 196; Cincinnati v. Evans, 5 Ohio St. 594; Irwin v. Nolde, 176 Pa. St. 594; 35 Atl. 217; 35 L. R. A. 415; 39 W. N. C. 33; Morrison v. Robinson, 31 Pa. St. 456.

15 Gress Lumber Co. v. Coody, 104 Ga. 611; 30 S. E. 810; Gates v. Comstock, 113 Mich. 127; 71 N. W. 515; 4 Det. L. N. 217.

16 Frisbee v. Marshall, 122 N. C. 760; 30 S. E. 21.

20

21

title is not admissible." Again, it is not essential in such an action that proof of malice should be given, though it has been alleged that the act was malicious as, in the absence of a claim for punitive damages, such an allegation is mere surplusage." There should be no allowance, however, for damages which are remote, speculative, and contingent, and which might easily have been prevented or avoided by the party injured.19 But the amount of damages which may be recovered in an action of trespass vi et armis, is not limited by the value of the property destroyed. And where special facts in aggravation of damages are set forth in a complaint in which a recovery is sought for malicious trespass, an instruction should not be given that only such damages are recoverable by the plaintiff as he has sustained in the temporary use and occupation of the premises, without any special damages. And it has been decided that where malice, and vexatious and incidental wrongs have been proved in an action of trespass quare clausum fregit any amount of damages may be given by the jury, provided they do not exceed the amount laid in the declaration and are not so excessive as to be obviously oppressive or as to show corruption or passion." So, although abusive conduct on the part of a trespasser may not constitute an assault and battery, yet such conduct may be considered by the jury in aggravation of damages. Special or peculiar damages, however, which are not the usual and natural consequences of the wrong complained of should be specifically set forth in the declaration by way of aggravation. And a plaintiff cannot show, in aggravation of damages, in an action against several who plead not guilty, distinct, and unconnected acts of different defendants.

25

§ 2116. Exemplary damages.—Where a trespass is com

17 Colorado Consol. L. & W. Co. v. Morris, 1 Colo. App. 461; 29 Pac. 302. See Schuylkill & Susquehanna Nav. Co. v. Decker, 2 Watts (Pa.), 343. 18 Neal v. Smith, 89 Me. 596; 36 Atl. 1058. 19 Loker (Mass.) 284. 20 Edwards (Conn.), 447.

v. Damon, 17 Pick.

v. Beach, 3 Day

21 Waters v. Durnas, 75 Cal. 563; 17 Pac. 685.

22

584.

Major v. Pulliam, 3 Dana (Ky.),

23 Mitchell v. Mitchell, 54 Minn. 301; 55 N. W. 1134.

24 Dickinson v. Boyle, 17 Pick. (Mass.) 78.

25 Higby v. Y.) 215.

Williams, 16 Johns. (N.