Opinion by
Rice, P. J.,The land in question is part of the estate of which the plaintiff is executor and trustee. It has a frontage of 300 feet on Woodville avenue, and a depth at one end of about seventy feet, and at the other of about 170 feet. For varying distances back from the street the land is comparatively flat; for the remainder of its. depth it is upon a hillside. The West Side Belt Railroad Company, acquired by grants from the plaintiff a right of way across the lot, nearly parallel with Woodville avenue and of a specified width at the grade of the railroad, together with the privilege of constructing and maintaining for the protection and support of the railroad a slope extending one and one-half feet from the right of way for each one foot in height of the slope. The right of way being, along *95the hillside, the railroad was constructed in part by cutting into the hill on one side and dumping the excavated material on the other side. The work was done by the Pittsburg Construction Company under a contract with the railroad company. The plaintiff claimed that the construction company deposited large quantities of earth, rock and waste matter, brought from other portions of the right of way, upon his land beyond the line of the slope or embankment contemplated by the grants to the railroad company. This action of trespass brought by him against the construction company and the railroad company to recover damages for the alleged injury resulted in a verdict and judgment in his favor against the construction company. Many questions growing out of a change in the location of the right of way, and of the grade of the railroad, arose on the trial, but the principal question for decision-.upon the plaintiff’s appeal, which is now before us, is as to the measure of damages; therefore we have alluded to such facts only as are pertinent to that question.
It may be stated broadly that the plaintiff contended that the whole lot was injuriously affected by the deposit of waste beyond the proper slope line, while the defendant contended that only that part of it which was actually covered by the deposits was so affected. The evidence relative to the location of the land, its contour and depth, the neighborhood in which it was situated, the uses to which it had been put and for which it was available before and after the trespass, and other matters affecting the relation of the part covered to the remainder of the lot, entitled the parties to have the question raised by the opposing contentions above alluded to submitted to the jury under appropriate instructions by the court. We entirely agree with the appellee’s counsel that whether or not the material, deposited where it was, in any way affected the property on Woodville avenue so as to make the value of the property, in any contingency, a measure of damages, was a question of fact for the jury. The determination of this question has an important bearing upon the question whether in estimating the damages the cost of removing the deposit is to be compared with the value or the depreciation in value of the whole lot, or with the value or the depreciation in value of the part covered. What we shall have to say relative to the *96measure of damages is to be taken subject to the foregoing qualification.
The plaintiff elected, as it is conceded he had a right to under the evidence, to treat the injury as permanent in its nature, and to ask that his entire damages be assessed accordingly : Seely v. Alden, 61 Pa. 302; Duffield v. Rosenzweig, 144 Pa. 520. Prima facie the measure of damages was the cost of removing the waste wrongfully deposited on his land and putting it in as good condition as if the slope had been constructed in accordance with the railroad company’s right under the grants. As shown by the plaintiff’s seventh point and the defendant’s fourth point the former conceded, and the latter contended that if this exceeded the value of the land the latter would be the limit of recovery. They differed in this only that the plaintiff claimed that the comparison should be made with the value of the whole lot while the defendant claimed that it should be made with the value of the part actually covered. The court, however, was not bound to submit the case upon the theory suggested by the points if the evidence warranted its submission upon a different one. The learned judge took the view, and so instructed the jury, that as there was no pretense that the whole property or its market value had been destroyed, the depreciation in the market value of the whole lot, of which the strip encroached upon is a part, would be the measure of damages, if ■ that was less than the cost of removing the deposit. This is the plaintiff’s chief subject of complaint. We do- not accede to the proposition, to which the argument of the learned counsel for the appellant seems to lead, that under no circumstances-would the depreciation in the market value be the proper measure of damages for a permanent trespass of this nature. Of course it is not the measure in the case of a nuisance not permanent as in Bare v. Hoffman, 79 Pa. 71; McCartney v. Philadelphia, 22 Pa. Superior Ct. 257, and similar cases where there is no ground for the presumption that the cause of the injury will not be abated. But in general the rule for the measure of damages for a permanent injury to the land is that which aims at actual compensation. As Justice Dean said in Stevenson v. Ebervale Coal Co., 203 Pa. 316, what the plaintiff has a right to ask is “ that he be made whole; not rich..” *97And although in the absence of evidence warranting punitive damages, they cannot exceed the value of the land directly or consequentially injured by the act complained of, yet it does not necessarily follow that if that is less than the cost of restoring the land to its former condition the party injured is entitled to recover the full value of the entire tract. Under some circumstances this would be the only just and practical rule that could be applied, while under others it would lead to a recovery grossly in excess of compensation, as is well shown by the illustrations given in his charge by the learned trial judge. It would not be profitable, however, to pursue the discussion of this question further; for although the rule laid down by the learned judge for the guidance of the jury would have been appropriate under some circumstances, we are constrained to the conclusion that it was not appropriate under the evidence submitted by the parties, In chief, the plaintiff gave evidence that about 1,777 cubic yards of waste were deposited on his land outside the line of the slope which the railroad company had a right to construct, and that the cost of removing it would be about $1,800. The defendant answered that the number of yards deposited on the plaintiff’s land, for which the defendant would be liable-in this action, was much less than the plaintiff claimed, that the cost per cubic yard of removing it would'be much less than his witnesses testified to, that the value of the land was about $300 per acre and that the land wrongfully covered did not exceed one-eighth of an acre. In rebuttal the plaintiff adduced evidence that the land was much more valuable than the defendant admitted. Up to this stage of the case neither party had attempted to show the difference between the market value of the land as a whole before the trespass and its value as affected by the deposit of waste beyond the proper line of the base of the slope. The plaintiff was not bound to introduce evidence of that kind in chief, and as the defendant did not introduce it, the plaintiff was not required, and strictly speaking was not entitled, to go into that question in rebuttal, Nor did he attempt to do so. In short, neither party had gone upon the theory in presenting his evidence that in some contingencies the depreciation of the market value of the whole lot would be the measure of damages. But upon cross-examination of one of the plaintiff’s *98rebutting witnesses, who had testified in his direct examination that the land was worth $12.00 a front foot, the question was asked whether it would make any difference if the railroad company had a right to maintain “ the slope there at one and one-half to one, that you can’t go up to the line of the railroad.” To which he replied: “Well, I think it would make a difference of a couple of dollars a foot there anyhow.” How much more difference it would make he did not undertake to say. It will be observed further, that he was not called upon to express an opinion as to the difference in the market value of the land with the proper slope and the slope actually made. His testimony above referred to was vague and indefinite at the best, and was rendered still more so by his answers to subsequent questions. Having regard to the manner in which the case was tried up to that point, to the purpose for which the witness was called and to the indefiniteness of his answer above quoted, we are of opinion that the learned judge fell into error in submitting the case to the jury upon the theory that the depreciation in the market value of the lot was fixed at $2.00 a front foot by a witness to whom the plaintiff gave credence. In the absence of sufficient and competent evidence relative to the depreciation in value as a measure of damages, the jury should have been instructed, that, subject to their finding as to the relation of the part occupied by the deposit to the rest of the lot, the cost of removing the material wrongfully deposited on the plaintiff’s land and putting it in as good condition as if the railroad company’s rights as to the slope had not been exceeded would be the proper measure of damages, provided such cost would not be greater than the value of the land injuriously affected, and in the latter case the value of such land would be the measure. This is all we deem it necessary to say regarding the second, fourth, fifth and sixth assignments of error which relate to the measure of damages.
The only other assignments that need be discussed are the first and seventh. The deed of 1899, for the right of way then granted said nothing as to the grade except that the right of way granted was thirty feet in width “ at the grade of said railroad.” But the defendant’s evidence shows that the grade had then been established. As to this there is no *99controversy. The same evidence also shows that the grant -of the right of way was made by the plaintiff with actual knowledge of and reference to that grade. Under all the evidence the plaintiff’s assertion in his first point that under the deed of 1899, the defendant had the right to construct its roadbed at such grade as it deemed proper could not have been affirmed. The court might well have refused the point outright, but we think the affirmance of the point with the qualification given in the answer gave the plaintiff the benefit of all the instructions requested in the point that he was entitled to.
Under the view taken by the learned judge, as shown by his answer to defendant’s second point and instructions given in his general charge, the questions, whether or not, and to what extent, the deposits complained of were made before the change of grade were material. If so, the plaintiff’s offer to show by the witness Barum that the grading complained of was done after August, 1901, and after the present grade of the railroad had been established was material and relevant. Aside from this, as the defendant had given testimony as to the amount of work done prior to the change of' grade, it would seem that the plaintiff ought to have been permitted to show that the deposit of waste complained of was not made in the execution of the grade contemplated when the original grant was made. Possibly, in view of the subsequent settlement made between the parties, the evidence would not be conclusive of the defendant’s liability in this action for the excess of the deposit beyond the line of the slope required by the changed grade ; nevertheless, for the reason stated, it was proper that the plaintiff should be permitted to show all the facts pertinent to the question.
The judgment is reversed and a venire facias de novo awarded.