¶1(dissenting). I am unable to concur in the opinion of Justice CORSON herein. I can find nothing in paragraph 4 of the complaint to in any way modify or change the effect of the wording of the remainder of the complaint; there being nowhere in said paragraph or in any other part of the complaint any allegation setting forth any injury to the real estate as such. To my mind it seems perfectly clear that the pleader set forth 'solely the damage by way of the destruction of the various items of property detailed. It will be noted that at the close of paragraph 3 are the following words: “Making a total of property *96on said premises of the plaintiff herein and so- owned by the plaintiff herein, destroyed by said fire in the sum of $2,000.” This summary taken in connection with the fact that several of the items burned were in their nature personal property clearly shows that it was the value of the property destroyed for which the pleader sought recovery, and not the damage to the real estate as such.
27 S.D. 86
Chudy v. Larkin
Decided February 1, 1911
South Dakota Supreme Court · decided 1911-02-01
<p>A complaint alleged that a fire set by defendant spread to premises owned by the plaintiff, and destroyed fencing, posts, a barn, lumber, cyclone cellar, two hog pens, six hogs, orchard and shrubbery, shade and forest trees, and machinery, specifying the value of each, making a total value of property destroyed of $2,000, and the following paragraph of the complaint alleged “that the plaintiff herein was the owner of the property so destroyed as hereinbefore stated, and that by reason of said defendant so setting said fire as hereinbefore stated, and so allowing the same to get beyond his control and spread and burn to the premises of the plaintiff,” he was “damaged in the sum of $2,000.” Held, that the specifications as to the value of the separate improvements destroyed, though unnecessary, were simply a description of the real property damaged, and that the paragraphs of the complaint read together stated a cause of action for damage or trespass to the buildings, fences, trees, etc., as part of the realty, and not as personalty separate from the land.</p> <p>While growing trees and improvements are generally a part of the realty on which they stand, the owner may, for a particular purpose, as in an action of trespass, treat them as personal property, and have an action for injury to them independently of the realty.</p> <p>Where grown timber has been destroyed or injured by a wrongful act, as by fire escaping from the premises of another, the owner has an action of trespass for injuries to the realty, and from the destruction or injury of .vines, fruit trees, and young growing timber, which have little or no appreciable value when severed from the realty, he has the same action.</p> <p>In an action of trespass for injury to personal property attached to the realty, the measure of damages is its intrinsic value as • detached and separated therefrom.</p> <p>In trespass to real and personal property which is injured or damaged by fire, and where the owner has elected by his pleading to bring an action for damages to the realty, the measure of damages is the difference in the value of the realty before and after the trespass.</p>
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1911-02-01
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Cited by 4 later decisions — most recently December 2015
1 federal appellate · 3 state decisions
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