Opinion by
Lewis, C. L,full Bench concurring.
The facts in this case, as presented to us by the transcript, are substantially as follows: In July, A. D. 1863, the plaintiff purchased a certain lot in the City of Virginia, near the quartz lode claimed by the defendant, from persons claiming to have located it in 1860. Shortly after the conveyance to him he graded about two-thirds of it, and built a dwelling house thereon at a cost of four thousand five hundred dollars, and enclosed the lot with a fence and stone wall. That the defendant whilst sinking a shaft upon its ledge deposited from one thousand to fifteen hundred tons of earth and rock on that part of the lot not graded or improved, broke down tire fence and stone wall, and by turning- water upon the lot destroyed the plaintiff’s cellar; by reason of which he suffered an actual damage of about eight hundred and fifty dollars, besides the loss of three weeks’ rent of his house, and the use of that por*542tion of the lot upon which the earth is deposited. The plaintiff claimed five thousand dollars damages, and recovered three thousand eight hundred. A motion for new trial having been made by the defendant, and granted by the Court below, plaintiff appeals.
Upon submitting the case, the Judge charged the jury, that the true measure of damage was the sum of money that it would require to remove the dArt from the flaAmtAjf’s lot, with a reasonable compensation for injury to buildings and fencing, together with the amount of rent which was lost by reason of the unlawful acts of defendant.
If the jury were misdirected as to the law in this instruction, the new trial was properly granted. Under some circumstances the instruction would perhaps be perfectly correct, though clearly erroneous upon the facts as presented to us in this case. The measure of damage for injury to property is not always the sum of money which it would take to repair the injury, or to restore the property to the condition it occupied before the injury. In those cases where the cost of restoring it to its original condition will exceed its actual value (which may often be the case), the value of the property and not the cost of removing the injury complained of, would be the proper measure of the damage. If the rule announced in the instruction were to be followed in all cases of this character, the damage recovered might often greatly exceed the value of the property appropriated or trespassed upon. In this very case, suppose the plaintiff had no improvements on the lot, and its real value would not exceed one thousand dollars, can it be claimed that the plaintiff would be entitled to recover what it would cost to remove the earth, which would exceed by two thousand dollars the actual value of the entire lot ? As it is, had the jury taken the highest cost estimated by the -witnesses for removing the dirt, it would have amounted in the aggregate to six thousand dollars, a sum exceeding the entire value of the property, whilst the plaintiff continues in the enjoyment of his dwelling house and two-thirds of his lot, and which do not appear to have suffered any permanent depreciation from the deposit of earth on the rear of the lot. If the dump pile •were a continuing injury, rendering the balance of the lot less *543valuable, and the house less convenient, and the cost of removing the dirt would not exceed the damage thus suffered by the plaintiff, it might have been correct to charge the jury that the proper measure of damage would be the cost of such removal; but, on the other hand, if the cost of removing the earth would exceed the damage suffered by plaintiff, it would be error so to charge them.
Where an injury is done to a building, as in the case of Walter v. Fort, 4 Abb. Practice E., cited by counsel for appellant, the cost of putting it in as good condition as it was before the injury would be the proper measure of damage, for in most cases of the kind such cost would, in fact, be the actual damage suffered by the complainant, though where there was a total destruction of a building it was held that the value of the building, and not the cost of rebuilding it, was the proper measure of damage. (Wylie v. Smitherman, 8 Iredell, 236.) So in Jones v. Gooday, 8 Meson & W., 146, the English Court of Exchequer held that the proper measure of damage in an action of trespass for entering upon the plaintiff’s close and carrying away the soil was the value of the land removed, and not the expense of restoring the premises to their original condition.
Though the charge given by the Court in this cause might be correct in some cases, it is not the rule where, as in this case, the cost of restoring the property to its original condition might exceed its value or the actual damage sustained by the plaintiff. The new trial was therefore properly granted.
Ordered accordingly.