Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-05-04

ton. This contention does not seem
have been urged upon the trial OF
he cause and It 10 questionable, under
he assignments Of error, II appellant
now In position to make it. With
ut passing upon the question OF ap
,ellant's right to present the question,
We cannot agree with counsel in the
construction they place upon this con-
tract. 1t is clear We think. that the
provisions of the contract requiring
appellant to deliver respondents fifty
inches Of water ION Section IA near
the line of Section % at a point to be
designated or the line Of the Gambler
Ditch" was only intended to tx the
place of delivery and that the water,
being thus delivered to respondents.
was theirs to conduct upon whatever
lands they could conveniently use the
same upon for irrigation purposes.
liant upon what lands the water should
be SO used.
Several alleged errors have been as
signed which will not be considered
as they have not been presented in
the briefs Of appellants counsel or 10
the oral argument Gardner VS. Gard
ner % New. 213; Allison We Hogan Il
( New. 30.
The following particulars are spec
flied in which it is .claimed the eyi-
dence does not support the decision of
the Court. and are all that require
consideration:
50. The Court made no allowance
for the hay and wheat which Gambler
cut and used from the land to which
the water was supplied by defendant
"A. The Court made no allowance
for the expense of raising. maturing.
threshing and marketing crops that
the Court held would have grown
upon said land had sufficient water
been supplied. but gave plaintiffs
! Judgment for all that said crop would
have brought in the market without
deducting the expense of maturing and
marketing the same"
! 10. There is no evidence. to support
that part of the finding of paragraph
5 that finds that the failure and re-
/ fusal of defendant to furnish the guam
/ tity of water it had SO agreed and that
plaintiffs were damaged by the loss
! of the wheat to the amount of $362.:5
or in any ether sum or to the amount
expended for alfalfa seed used in seed
ing said land, or in any other sum
whatever or to the amount of $3.50
or any sum for labor and board of one
person employed to irrigate said
lands and crops, Or that the total
damage sustained by plaintiffs is S675.
Ii or any sum greater than 1926
In passing upon the foregoing spec
ificatiOnS it is necessary to determine
whether the trial Court adopted and
applied proper measure of damage
for the loss of the growing crops
The measure of damage adopted b,
the trial Court is expressed in it,
opinion and is as follows: The dam
ages would be the value of the crops
such as the Witnesses should believe
would ordinarily have been produced
that year, deducting all expenses OF
raising the CROP" Is this rule for tn
measure CT damages in cases of this
kind entirely correct? The author
tiles do not all agree as to what is
proper rule for the measure of dam
ages for loss or destruction of growing
crops 1t is very generally held, how
ever, that the measure of damages fOl
the destruction of a growing crop. is
: the value VI lHt CIop III ilo COIulIiO
at the time of the injury. A still
wider difference of opinion exists
among the authorities as to the evi
dence that will be heard in detrmin
ing such damage, as the following
extracts will illustrate:
O.. In Sutherland on Damages Sec. 1923
the author says: In ascertaining the
value of the crop in accordance witt
this rule a considerable latitude O
inquiry is properly open. The ca
pacity of the land to produce crop;
being in question, evidence of the
average yield of like crops upon simi
lar lands in the neighborhoOd unde
like circumstances and conditions, j:
admissible and also the average
market value of the crop injured
within reasonable limitations as u
time, and the expense of harvestln'
and marketing like crop"
In Sedgwick on Damages. Sec. 931
that author SAYS in estimating tn
vaue of the crop the prevailing rul
seems to be to take its actual valu
at the time Of the trespass. not it
probable value, assuming that it wous'
have matured. On the other han
in Smith VS. Chicago, c. & D. r. 4
Cot the measure of damages wa
stated to be the difference betwee
the market value of the crops whe
ripe and their value in an injure
.. state, less the cost of growing then
, This rule. however. is Objectionab!
because it assumes without proof tina
the crops would have come to ms
r turlty"
!, In Burnett VS. Great Northern X,
Co, IS MINI. 465. in discussing tn
rule as applied to the evidence in tina
case the Court says: IF the damage
, to the plaintiffs crops are to be e
: tfmated with reference to event
). occurring subsequent to the loss. sue
! as the average yield of similar crop
!. and the market value of the gran
n the evidnce indicates that they al
excessive. But the measure OF tn
a plaintiffs damages for the loss OF n
/ h.