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Show REMEDIES FOR INFRINGEMENT 223 an irrigation district in the construction, maintenance, and operation of an artificial channel in a river, the Idaho Supreme Court indicated that the measure of damages was the difference between the fair market value of the plaintiffs land before and after the alleged flooding of his land resulting from the defendant's wrongful action.160 (10) In a Colorado proceeding to condemn a right of way for an appropriator's canal across defendant's land, in which the canal was completed involved an action against an appropriates that held eminent domain powers (id. at 794) and was treated in effect as an inverse condemnation proceeding. For this and related aspects of the case, see "Reverse or Inverse Condemnation," infra. See also Crum v. Mt. Shasta Power Corp., 117 Cal. App. 586, 604, 4 Pac. (2d) 564 (1931). Although it was later held not to involve inverse condemnation in 124 Cal. App. 90,12 Pac. (2d) 134 (1932), any injunctive relief was voluntarily abandoned in this action for damages due to a permanent diversion of water. 4 Pac. (2d) at 566, 568, 570. Regarding the question of considering offsetting benefits in determining the market value, see the Collier case, 2 Pac. (2d) at 796-797, and the Crum case, 4 Pac. (2d) at 572-573. The Crum case and other cases were cited in Rilovich v. Raymond, 20 Cal. App. (2d) 630, 67 Pac. (2d) 1062, 1070-1071 (1937), hearing denied by the California Supreme Court (1937), in support of the district court of appeal's conclusion that the proper measure of damages for the loss of plaintiffs orange trees, exclusive of nursery stock, was the depreciation in the value of the land caused by the failure to supply water under a contract. The court said that damage to the trees was damage to the land and when the loss of the tree is compensated in damages to the full value, the value takes the place of the tree and there will be no future crops to consider. The court thereupon refused to apply the "restoration rule" applied to the destruction of alfalfa in Lowe v. Yolo County Consol. Water Co., 157 Cal. 503, 108 Pac. 297 (1910), discussed at note 153 supra, in which the damages allowed included the cost of reseeding and the crops lost until reseeded. The court said, "We see a vast difference, however, between the restoration of a part of an established crop of alfalfa, which can be accomplished readily and with a fair measure of certainty, and the restoration of such an orange grove as the one involved in the present case." Different rules were applied to other types of damage in this case. 160Smith v. Big Lost River Irr. Dist, 83 Idaho 374, 364 Pac. (2d) 146, 152 (1961). The court said that it had consistently followed the rule it had announced in Young v. Extension Ditch Co., 13 Idaho 174, 89 Pac. 296, 298 (1907), to the effect that this should be the measure of damages if land is permanently injured, whereas if it is only temporarily injured the owner is entitled to recover the amount necessary to repair the injury and restore the land to its former condition, and, in either event, legal interest should be included to the time of trial. In rejecting a contention that an award of damages for stream pollution was excessive, that the injury to plaintiffs property was not a permanent one for which damages for the defendant in market value before and after the injury could be obtained, but was a temporary one and the depreciation in market value was not the correct measure of recovery, the South Dakota Supreme Court approved the trial court's finding that the amount of damages recoverable was the decrease in market value and pointed out in regard to the damages sustained that "From their very nature, such damages are not susceptible of exact measurement, nevertheless it was for the court to determine their extent." Parsons v. Sioux Falls, 65 S. Dak. 145,153, 272 N.W. 288 (1937). |
