dissenting.
The court today throws away an opportunity to take a step presaged in its opinions of the last 30 years. Because I believe we should take that step, I dissent.
As early as 1959, this court said that, in cases of tortious damage to real property,
“[because] the allowance of damages is to award just compensation without enrichment, there is no universal test for determining the value of property injured or destroyed and * * * the mode and amount of proof must be adapted to the facts of each case. [Citation omitted.]”
Ore. Mutual Fire Ins. Co. v. Mathis, 215 Or 218, 224-25, 334 P2d 186 (1959) (emphasis added). “Just compensation without enrichment” should continue to be the lodestar in such cases today. The majority agrees. 306 Or at 117. Unaccountably, however, the majority concludes in the present case that the only way to achieve that goal is to require the owners of the damaged property to prove the before-and-after value of their home, i.e., prove the diminution-in-value of the home due to the blasting. I agree that such would be one way for the Barnes to prove their damages; I do not agree that it is the only way.
For authority, I need rely only on Ore. Mutual Fire Ins. Co. v. Mathis, supra, and Hanset v. General Construction *132Company, 285 Or 101, 589 P2d 1117 (1979). All the pertinent language from those two opinions is to be found in the majority opinion; the majority simply misreads what the language means. This misreading is based on the majority’s preoccupation with whether the injury to the property in this case was “temporary” or “permanent.” Because the damage to the Barneses’ house is total, the majority reasons, the injury in this case is permanent. 306 Or at 121. Therefore, the majority reasons, the rule of law applicable in permanent or total destruction of the value of real property cases is the one to apply here, and that rule applies the diminution-in-value measure of damages. 306 Or at 121-124. See Hudson v. Peavey Oil Company, 279 Or 3, 10, 566 P2d 175 (1977). Thus, the failure of the Barneses to offer evidence of the diminution-in-value of their home puts them out of court.
I read Hanset v. General Construction Company, supra, to the contrary. As the description and quotations from the case in the majority opinion show, Hanset was a case in which this court permitted recovery for damages due to blasting very like those in this case when the house was essentially destroyed and the only evidence offered by the plaintiffs as to their damages consisted of evidence as to how. much they would be required to pay in order to repair the building. 285 Or at 104,106-7. No amount of effort by the majority succeeds in distinguishing Hanset from the present case; we should follow it.
The majority apparently fears that permitting parties in the Barnes’ position to survive a motion for directed verdict when their only evidence is what it would cost to replace a structure could result in unjust enrichment, or “betterment,” because the usual experience is that structures have depreciated. Giving plaintiffs a new building requires a defendant to do the equivalent of buying a Cadillac to replace a Chevrolet.
There are two answers to this concern. The first is that offered in the separately dissenting opinion of Justice Linde. Proving damages by cost of repair only means that one survives a motion for a directed verdict. The defendant must then come forward with evidence, if any there be, of a value of the structure prior to its destruction which was lower than the replacement cost. The jury is then instructed under the standard of just compensation without enrichment — if it finds *133the defendant’s diminution-in-value evidence persuasive, it will bring in a verdict accordingly. If it does not, plaintiffs will be entitled to receive the higher figure (should the jury find it persuasive).
The second answer is that it is not necessarily true in each case that the cost of replacement will result in unjust enrichment. One can readily imagine cases in which either a rising housing market or a sudden increase in the value of having a house at the specific location where the former one was located meant that the before-destruction value of a depreciated house was equal to or even higher than the replacement cost of the house. These are jury matters. The trial court erred in ruling to the contrary, and this court errs in upholding the trial court.
I respectfully dissent.