(dissenting).
The majority reverses this judgment on the grounds that the only method available to plaintiff to determine the appropriate damages to his real property and the damage for the destruction of a growing tree is to determine the difference between the fair market value of the property before and after the injury. However, the case law supports an alternate measure of damages in fact situations similar to this one. In Fort v. Brighton Ditch Co., 79 Colo. 462, 246 P. 786, wherein the ditch company sued on account of injury to its irrigation ditch, the court determined:
“There are instances, like this case, when the cost of restoration of the property to its original condition is the proper measure of damages."
Here, defendants in constructing the apartment house, changed the grade of their land causing drainage water to flow *219onto plaintiff’s property in such a manner as to require the regrading of plaintiff’s land and the construction of an entirely new drainage system to remove the water and to protect the structural base of improvements existing on the property. The court found, based on competent evidence, that the reasonable cost of repair was $11,062. There is no question that plaintiff suffered damages to his property. Upon expenditure of the restoration costs, plaintiff’s property would be returned to its original condition prior to the injury. As in Brighton Ditch Co., supra, the proper measure of damages in the instant case is the cost of restoration.
The measure of damages for injury to real property is not invariable. As stated in Colorado Bridge & Construction Co. v. Preuit, 75 Colo. 107, 224 P. 222: “The rule to be applied should be such as will enable the jury to determine, as near as may be, the actual loss.” For an application of this rule, see Bobrick v. Taylor, 171 Colo. 375, 467 P.2d 822, in which the proper measure of damages for trespass involving removal of earth from a section of plaintiff’s property was held to be the cost of constructing a retaining wall and replacement of soil.
In my view, the difference in market value as the measure of damages for injury to real estate is restricted primarily to condemnation proceedings. The cost of restoration is more appropriate as a measure of damages where an individual has suffered damage to his real estate through the actions of another. Only by applying this alternative rule may a property owner be assured of a viable remedy to a trespass. For example, if an out-of-control automobile were to damage one’s lawn, shrubbery, and home, the proper measure of damages should be the cost of repairing the damage. In such an instance the property owner should not be deprived of damages merely because he failed to present evidence of market value of the property, both before and after the accident, even though he did present evidence of the cost of repair. Furthermore, the trespasser should not escape responsibility for his trespass merely because the homeowner is fortunate enough to sell the damaged property during the pendency of the litigation.
Since the loss incurred by plaintiff here may properly be measured by the cost of replacing the tree and the cost of constructing the new drainage system, and since there is competent evidence in the record to support the court’s finding as to what such reasonable ■ costs would be, I would affirm the judgment.
There is no question but that plaintiff’s property was damaged and even though he sold the property subject to the damage, he should be entitled to recover for this damage. Therefore, if the judgment is not affirmed, surely this case should be remanded for a new trial on the issue of damages. It was tried on the issue of cost of restoration and judgment was granted on this basis. If the court now holds that the wrong theory for the recovery of damages was advanced, plaintiff should be allowed to try the case on the measure of damages as directed by this court. See American Factors Associates, Ltd. v. Triangle Heating & Sheet Metal Co., 31 Colo.App. 240, 503 P.2d 163.