¶1ON REHEARING: After the foregoing opinion was filed, the defendant’s motion for rehearing was granted.
¶2On rehearing, defendants reargued their claim that the conflicting instructions on damages confused and misled the jury and also contended that the test of the difference in value in 1968 just before the nuisance and just after was the law of the trial because the trial court so stated to counsel at trial.
¶3A reexamination of the record shows, however, that counsel for the defendants understood the charge to refer to the difference in market value at the time of trial with and without the nuisance and that he excepted to the charge for that reason. Nowhere, however, do we find that counsel called the court’s attention to any inconsistency in the charge so that it could be corrected. Coos Lumber Co. v. Builders Supply Co., 105 N.H. 323, 199 A.2d 545 (1964); Jolicoeur v. Conrad, 106 N.H. 496, 213 A.2d 912 (1965).
¶4We also fail to see how defendants are prejudiced by the inconsistency. If the jury understood the charge as counsel apparently did and applied the “with and without nuisance” test as of the time of trial it followed the correct law. If, however, it applied the “before land after” test as of 1968, defendants cannot complain as that is the test they wanted.
¶5Nor do we find any statement of the trial court to counsel that bound the court to the test of the “before and after” value as of 1968. The court in colloquy during the trial referred to the “fair market value given the nuisance and absent the nuisance”; to “the fair market value of the property absent the nuisance, and the fair j market value of the property after the creation of the nuisance”; and to “absent the nuisance and the recreation of the nuisance, that difference”. Although Ferguson v. Keene, 111 N.H. 222, 279 A.2d 605 (1971) was mentioned, the court did not state that it was adopting that rule. In fact after the defendants’ objection to the charge, the court stated that “I believe that the current state of the law is that if they were to ... find [a permanent nuisance] there could be one recovery only measured as of the time of trial” and then mentioned Morris v. Ciborowski, 113 N.H. 563, 311 A.2d 296 (1973).
¶6*175After a careful consideration of defendants’ claim we find no reason to modify our previous opinion which is hereby affirmed.
¶7Former result affirmed.
¶8June 30, 1976