AMI 2223 Measure of Damages—Damage to Real Property—Permanent

This clause is to be inserted between the two paragraphs of AMI 2222 when the evidence justifies its use.

This instruction embodies the usual measure of damages for a permanent injury to land: Southern Ice & Utilities Co. v. Bryan, 187 Ark. 186, 58 S.W.2d 920 (1933) (construction of a nuisance in a residential district); St. Louis, I.M. & S. Ry. Co. v. Miller, 107 Ark. 276, 154 S.W. 956 (1913) (overflow); St. Louis, I.M. & S. Ry. V. Magness, 93 Ark. 46, 123 S.W. 786 (1909) (diversion of stream); St. Louis, I.M. & S. Ry. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159 (1900) (destruction of growing trees).

In some situations, such as damage to a well, it is a question for the jury whether the damage is permanent or temporary. The correct procedure is then to explain both measures of damages and leave the selection to the jury. Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).