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Show REMEDIES FOR INFRINGEMENT 221 failed to obtain two more crops it would have produced if properly irrigated. Moreover, the land would need to be reseeded to put it in the condition it was in at the time the water was refused. It had just been prepared for alfalfa that spring and its expected capacity to produce alfalfa for several years was destroyed. The California Supreme Court concluded that in such a case the proper measure of damage was the value of the two crops that were lost in 1906 plus the cost of reseeding.153 In a case involving damage to alfalfa by flooding in 1929,1930, and 1931, the California court said:1S4 The authorities note a distinction between the proper measure of damages for the destruction of a perennial crop, such as alfalfa, and the measure of destruction of such crops as vegetables and grain, which require annual planting.... Both in this state and elsewhere there is more or less confusion on the subject of the correct method of estimating such damages.... We gather that where there has been a total destruction of a perennial crop, such as alfalfa, akin to destruction of pasturage, grazing land, or meadow, the better rule for measuring damages may be that relied upon by appellant (the difference in rental value of the property with and without the crop thereon), but where, as here, the court merely finds that the "alfalfa * * * was injured" and plaintiff was unable to carry on her usual and customary farming operations, the rule applied by the trial court would seem to be the approved measure of damages (the local market value of the crop less cost of production and marketing).. .. Notwith- standing the conflict of authority and the difficulty of estimating damages in these cases, the decisions are in complete agreement upon one proposition, and that is, that "compensation for the real injury is the purpose of all remedies." (7) In a 1967 case involving injury from water pollution caused by a State fish hatchery, the Colorado Supreme Court said in regard to the measure of damages that the "loss necessarily includes out-of-pocket expenses incurred by those suffering the damage in an effort to avoid the consequences of the defendants' acts resulting in the loss" and indicated that the trial court had properly considered relevant expenditures of money by various plaintiffs covering costs of hauling water and digging wells in order to secure a new source of supply.155 153Lowe v. Yolo County Consol. Water Co., 157 Cal. 503,108 Pac. 297, 299-300 (1910). 1MStaub v. Muller, 7 Cal. (2d) 221, 60 Pac. (2d) 283, 286-287 (1936). lssGame & Fish Comm'n v. Farmers In. Co., 162 Colo. 301,426 Pac. (2d) 562, 565-566 (1967). The court indicated that where the State agency lacks the power to condemn private property for a claimed public use, a property owner whose property has been damaged by it cannot be held to have commenced an action for "inverse condemna- tion" when he seeks to recover the damages and is not forced to accept the measure of |
