Mattis v. St. Louis & San Franciso Railroad

ELLISON, J.

— This action is based upon a petition in two counts. The first was for the destruction by fire of plaintiffs’ matured crop of hay ready to be harvested, at the sum of $1,127.50, and of burning the roots of the grass in parts of the field, in the sum of $375.85. The *63 second count was for the destruction by fire of five and a quarter tons of baled hay. There was a general verdict for plaintiffs for $1,150. Defendant appealed.

The court instructed the jury that damages could be measured by “the difference in value of the plaintiffs’ land before and after the fire.” This presumably had reference to the destruction of the grass roots. The petition does not disclose whether the grass was timothy, blue grass or prairie grass. Portions of the evidence speak of it as meadow, which in this State ordinarily means timothy; while other portions seem to show it to be prairie hay.

If it was timothy meadow or blue grass, which are grasses with which land may be seeded and made to produce annual crops, the instruction was erroneous. We decided in Knight v. Railroad Company, 122 Mo. App. 38 , that the measure of damages for the destruction of the roots of the grass of a meadow was the cost of reseeding and loss of rental value the season lost in that process. That was also the effect of our decision in the case of Standley v. Railroad Company, 121 Mo. App. 537 , and Jones v. Cooley Lake Club, 122 Mo. App. 113 . That is likewise the view taken in Railroad v. Jones, 59 Ark. 105 ; Vermilya v. Railroad Co., 66 Iowa 606 ; and Railroad Co. v. Hixon, 110 Ind. 225 . Kindred rules of damages have been elaborately discussed by the St. Louis Court of Appeals in the cases of Carter v. Railroad Co., 128 Mo. App. 57 , and Hunt v. Railroad Co., 126 Mo. App. 261 , and great lack of uniformity of view is there shoAvn to exist. But we have not been cited to a case in this State involving the rule of damages for destruction, not of the timothy crop, but of the roots of the meadow, where a different rule has been laid down from that we have here stated. It certainly appears to be reasonable and capable of the most correct result to measure the damages by the cost of restoring the grass, *64 including the loss of rental value while it is being restored.

A part of the damages stated in the first count was for the destruction of the standing but matured crop. The damage in such case is the value of the crop in the market, after allowing for expense in harvesting and marketing.

But for wild grass, commonly known as prairie grass, which is not produced from seed sown and which, when once destroyed, cannot be restored in a season by the agency of man, a different rule necessarily applies. For the destruction of the roots of such production may be an injury to the land itself and the damage would be the difference in that value before and after the fire. Though the burning of prairie grass is common, yet it could not be said, as a matter of law, that the roots could not in some instances be destroyed.

The verdict being general where there was more than one count on distinct causes of action, should have been set aside. [Bricker v. Railroad Co., 83 Mo. 391 ; State v. Harmon, 106 Mo. 635, 657 .]

The judgment is reversed and the cause remanded.

All concur.