dissenting. — In my opinion, the sixth instruction given by the court, and held by the majority to be erroneous, is correct. It is very properly said in the majority opinion that, in the absence of a special remedy or special liability, the law gives the injured party compensation, and nothing more. So far there can be no difference of opinion. Neither can it be denied that if the injured party is paid to the extent that the property is depreciated in value by the injury, or, what is the same thing, the difference between the value before and after the injury, he would receive compensation, and nothing more. It is not necessary that witnesses should be called to prove the value of the property. It is not even necessary that they should know what the entire property is, unless the injury sustains some relation to the property in its entirety. 'Ordinarily, it is sufficient if they know what the injury is, and the character of the property injured; if they know that, they should be able to judge of the amount of depreciation caused *170by the injury, or the difference in value before and after the injury. The cost of restoration may or may not be a proper measure of damages. It would not be, if it would not be judicious to make such expenditure. It would not be difficult to suppose a case where an injured building would be in such a condition that, while not wholly worthless, the cost of repairing the injury would be greater than the value of the building repaired. In such case the cost of restoration would not be the proper measure of damages.
In the case of Esterbrook v. Erie R’y Co., 51 Barb., 94, where the defendant had so constructed its embankment as to cause a deposit to be made on the plaintiff’s land, the court held that the cost of removing the deposit would not be the proper measure of damages, if the cost of removal would be greater than the value of the land restored. Again, the rule of cost of restoration is inapplicable in another class of cases, and that is where the value of the property after the restoration would be greater than before the injury. This would often be the case where the thing or part destroyed or injured was already old and defective. The rule, then, announced by the majority is one of limited application, and is of no use anywhere except as a mode of reaching the same result as would be reached under the instruction which is held erroneous. The rule of the instruction is the same as that held in Chase v. New York Cent. R’y Co., 24 Barb., 273, which is cited approvingly and followed in Drake v. Chicago, R. I. & P. R’y Co., 63 Iowa, 310. The case of Chase v. New York Cent. R’y Co., was one where the injury was to 'the plaintiff’s garden, grounds and fruit trees, and was not, so far as the character of the injury was concerned, unlike the case at bar. In that ease the trial court had instructed the jury that the rule of damages was the difference between the value of the premises before the injury happened, and the value immediately after the injury. The court approved the instruction, saying that “it called upon the jury to decide, in the most practicable way they could, the real injury done *171to the plaintiff’s property, by the conduct of the defendants complained of.”
In applying the rule, the jury might doubtless be aided in some cases by considering the cost of restoration. This would be so where restoration was practicable and judicious, and the property in its restored or repaired condition would' be of the same value that it was before the injury.