dissenting.
I respectfully dissent from that portion of the majority opinion which upholds the computation of Young’s damages based upon a higher market price realized from storage of his beans for a period of several months after harvest and then selling the beans at an average price of nearly $3.00 per bushel greater than market price at harvest. I do not believe such decision to be consistent with the general rule concerning measure of damages in the case of injury to growing crops. I concur in the statement of the majority that the most prevalent method of ascertaining the value of such a crop “is to take the difference between the value of the probable crop at maturity and the value of the actual crop at maturity with a deduction for any substantial savings in costs for cultivating, marketing and storing the crop.” (See majority opinion.) However, I cannot agree that the value at maturity in this case is the value of the crop when actually sold by Young.
There appears to be little authority on this precise issue, but the case of United States v. 576.734 Acres of Land, etc., (3rd Cir. 1944) 143 F.2d 408, is strikingly similar to the case at bar. That case was a condemnation action and involved the question of damages to be awarded for the taking of a growing wheat crop. The taking was on March 23, 1942, and the trial court permitted the lessee to present evidence, over objection, that it was customary for farmers in that neighborhood to hold their grain until January for better prices, and to present evidence as to January, 1943 grain prices. The court held that the admission of such evidence was erroneous. The court then considered the analogy of cases involving tortious destruction of crops, and said at 143 F.2d 409-10:
“An analogy is found in the cases dealing with the tortious destruction of growing crops. The basis of compensation is the value of the unmatured crop at the time it is destroyed. But since it is not customary to buy or sell growing crops as such, no effective market value, in this sense, ordinarily exists. The formula adopted has been to take evidence on the probable yield and value of the crop when harvested at maturity and the cost of further care and cultivation, harvesting and marketing the crop, in order to determine the actual realizable value of the crop when destroyed; or what the crop when harvested would have brought, less the prospective cost of cultivation, harvesting and marketing. In allowing such evidence, many decisions state that the market value of the yield to be considered is the market value ‘when’, ‘at the time’ or ‘at’ maturity or harvesting and gathering of the crop. This limitation is a reasonable one, for, it must be remembered, the general rule is that the measure of damages is the value of the crops at the time of injury or destruction. Since as a *735practical matter that value cannot be actually determined, the nearest time thereafter when a market value can be placed upon the crops is considered. The same limitation applies in the instant case.” (Footnotes omitted.) (Emphasis added.)
Although that case was a condemnation action rather than a case of tortious injury to a crop, and, as the court said, was concerned with the value of the property at the time of taking, and not what the lessee might have made as a warehouseman of grain held for favorable market (143 F.2d 410), nevertheless, I believe that the court’s discussion of the rule as to measure of damages for tortious destruction of crops correctly states the rule, and that such rule should be applied here.
I am aware of the case of Lamoreaux v. Randall, (1926) 53 N.D. 697, 208 N.W. 104, wherein the court stated that sometimes in the case of conversion of crops the measure of damages could be computed upon the basis of the highest market value between the date of conversion and the date of verdict. However, that holding is based upon specific statutory authorization for such manner of computation of damages. No such statute exists here, and Lamoreaux v. Randall, supra, is, therefore, not applicable.
Here, we are concerned with the negligent injury of Young’s crop, and with fairly compensating him for his loss at the time it was suffered. We are not concerned with what Young might have made, or did make, as a warehouseman of grain held for a more favorable market. I believe that Young’s damages should have been computed on the basis of the highest market price obtainable at the time of harvest. I would reverse and remand for recomputation of the damages on the basis which I have indicated and for correction of the judgment accordingly.