When damages to real property are "permanent in nature, the measure of damage is the difference between the actual value immediately before and immediately after the damage is sustained." Keck v. Bruster, 1962 OK 35, ¶ 7, 368 P.2d 1003, 1005 (quoting ABC Constr. Co. of Okla. v. Thomas, 1959 OK 231, ¶ 4, 347 P.2d 649, 651). ¶ 48 The Clevelands' damages expert, Daniel Simon , testified that the Clevelands' home has no value, due to extensive termite damage.

Because the value of the debentures was incurably impaired by the bank's failure to convert, the damage issue may be characterized as involving the permanent destruction of personal property. In such cases, the rule in Oklahoma is that the measure of damages is the value before the injury less the value after the injury. A.B.C. Construction Co. of Oklahoma v. Thomas, Okla., 347 P.2d 649. This rule has previously been applied by this court, in a case involving New Mexico law. Robert E. McKee General Contractor, Inc. v. Insurance Co. of North America, 10 Cir., 269 F.2d 195. The application of this rule to the present situation means that the pledgor's damages should be computed by subtracting from $9,308.

“Permanent injury to property occurs when it ‘may not be successfully repaired so that it will be substantially in as good a condition as it was before the injury.'” Thompson v. Andover Oil Co., 691 P.2d 77, 82 (Okla.Civ.App. 1984) (quoting Keck v. Bruster, 368 P.2d 1003, 1005 (Okla. 1962)). Where the injury is permanent, “the measure of damage is the difference between the actual value immediately before and immediately after the damage is sustained.” Schneberger v. Apache Corp., 890 P.2d 847, 849 (Okla.Civ.App. 1994) (quoting Const. Co. of Oklahoma v. Thomas, 347 P.2d 649, 651 (Okla. 1959)). Where the injury is temporary, meaning that the property can be restored or the nuisance abated, “the measure of damage is the reasonable cost of repairing the damage and restoring it to its former condition,” but not to “exceed the depreciated value of the land itself.” Id.

Under Oklahoma law, damages for permanent harm to property are measured by the difference in actual value of the property immediately before and immediately after the damage is sustained. A. B. C. Const. Co. of Oklahoma v. Thomas, 1959 OK 231, 652, 347 P.2d 649, 651 (1959) (citing Mid-Continent Petro, Corp. v. Fisher, 1938 OK 483, 84 P.2d 22 (1938); City of Stillwater v. Cundiff, 1939 OK 118, 87 P.2d 947 (1939); Oden v. Russell, 1952 OK 414, 251 P.2d 184 (1952)). See MCO Ex. 5, Credit Agreement § 7.7; MCO Ex. 8, Amended and Restated Guaranty Agreement § 16.3.

The measure of damages to real property has generally been determined according to whether the injury is abatable (temporary) or permanent. In A.B.C. Const. Co. of Oklahoma v. Thomas, 347 P.2d 649, 651 (Okla. 1959), this court held that: We are committed to the rule that where damages are of a permanent nature, the measure of damage is the difference between the actual value immediately before and immediately after the damage is sustained.

"The measure of damages to real property which are of a temporary character is the reasonable cost of repairing the damage or restoring the property to its former condition, where, as herein, the cost of restoration or repairing is shown to be less than the fair value of the property before and after the injury and the building can be restored to substantially the condition it was prior to the injury." And see A.B.C. Construction Co. of Oklahoma v. Thomas, Okla., 347 P.2d 649; Keck v. Bruster, Okla., 368 P.2d 1003. In the instant case there was evidence that plaintiff's property had a value of $30,000 prior to Allied's acts. The cost of restoration was less than the value before injury. Also the judgment of the trial court was considerably lower than the lowest amounts shown by plaintiff's evidence as to the costs of the repairs and restoration.

Plaintiffs cite Chicago, R.I. P. Ry. Co. v. Quigley, 57 Okla. 260, 156 P. 669, L.R.A. 1918A, 273, which contains a statement of the measure of damages for total or partial destruction of a building in substantially the language of the quoted instruction. In A.B.C. Construction Co. of Oklahoma v. Thomas, Okla., 347 P.2d 649, we stated the rules to be applied in this type of case: "We are committed to the rule that where damages are of a permanent nature, the measure of damage is the difference between the actual value immediately before and immediately after the damage is sustained: Mid-Continent Petroleum Corporation v. Fisher, 183 Okla. 638, 84 P.2d 22; City of Stillwater v. Cundiff, 184 Okla. 375, 87 P.2d 947; Oden v. Russell, 207 Okla. 570, 251 P.2d 184. Where property can be repaired and substantially restored to its former condition, the measure of damage is the reasonable cost of repairing the damage and restoring it to its former condition.

It is not suggested that the cost of rebuilding the highway so as to reduce the grade thereof below that of the house and the cost of providing adequate drainage through the fill would not exceed the amount of damages to the house and yard which will result in runoff water gathering in the yard and in and under the house. In A.B.C. Construction Company of Oklahoma v. Harold Thomas, Okla., 347 P.2d 649, 652, this was said: "There being competent evidence tending to show that the building was permanently damaged as a result of the blasting by dynamite and no evidence tending to show that the building was susceptible of repair and the trial court instructing the jury that the measure of damage is the difference between the fair cash value of the building immediately before and after the damage occurred, the cause will not be reversed for the alleged reason that the trial court, though not requested to do so, failed to instruct the jury upon the theory, that the building was susceptible of repair.

Lynn v. Rainey, Okla., 400 P.2d 805 (1964); Keck, supra. The issue of permanent damages is discussed in ABC Construction Co. v. Thomas, Okla., 347 P.2d 649 (1959). The decisions of the trial court sustaining the demurrer and excluding certain evidence as to the lost rental value of the land are reversed.