The opinion
I concur in the conclusion that the judgment should be reversed and a new trial should be had of the action, for the following reasons. We must assume, upon this appeal, that the plaintiff has been deprived by the defendant's acts of the beneficial use of the waters, which were upon his lands; or which, being under their surface, were made useful thereto, through natural processes. That the defendant is liable for any damage, sustained in consequence, must be regarded as settled and that liability must be measured by the extent to which the fee value, or the rental value, has been diminished. The nature of the case appears to be such that proof of the rental value, before and after the establishment of the defendant's pumping station, is difficult to be made. Hence, the usable value of the premises, which, if not synonymous with rental value, has, as a term, an equivalent sense, should be allowed to be shown. Evidence of the character and extent of the use made of the lands, of the nature of the business conducted thereon, when in their normal, or usual, condition, as to surface and subterranean waters, and when deprived thereof, was competent, as proving, or tending to prove, usable value. In the light of such proof, it would then have been for the jury, or for the court, to determine whether, and to what extent, the fee value, or the rental value of the lands, as affected by the diversion of the waters, had been substantially injured.
It was, therefore, error to exclude, or to strike out, evidence showing the product and yield of the lands before and after the pumping began, and the business conducted by the plaintiff; which evidence would have informed the minds of the trial judge, or of the jurors, and would have enabled them to reach a conclusion as to the damage sustained by defendant's acts.
PARKER, Ch. J., MARTIN, CULLEN and WERNER, JJ., concur; O'BRIEN, J., not voting.
Judgment reversed, etc. *Page 212