Donald v. St. Louis, K. C. & N. Railway Co.

The only question presented is as to the measure of damages. The court allowed the plaintiff the value of the crop destroyed. Appellant insists that plaintiff under the circumstances disclosed had no right to plant a crop; that he should have allowed the premises to remain uncultivated, and that the measure of his damage is the rental value of the land. We think otherwise. Plaintiff had a right to make the usual use of the premises. Defendant knew the partition *159fence liad been erected, was notified to put in a cattle guard, and had time to do so before the damage was occasioned. It . was defendant’s duty to erect a cattle guard, and plaintiff had a right to suppose this duty would be performed. If plaintiff had allowed the premises to remain idle, and had sued for the rental value, defendant probably would have said “if you had planted a crop, non constat it would have been injured,” or “if you had cultivated the premises, creating a necessity for a cattle guard, it would have been erected in time to protect your crops.” There is no error in the judgment of the court below. See Smith v. Chicago, Clinton & Dubuque R’y Co., 38 Iowa, 518.