Opinion
May, 1935.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgment modified on the facts by decreasing the amount of damages to $412.50 with interest from May 8, 1931, and as modified affirmed, without costs. Certain findings of fact disapproved and reversed and new findings made. Per Curiam Memorandum. We find error of fact in this case solely with relation to damages. There is great difficulty in determining the amount of damage attributable to the negligence of the State. There is no satisfactory proof of depreciation in value of the premises, nor of the injury done to the forest in general considering that lumbering operations were impracticable by reason of the inaccessibility of the property. We are convinced by the evidence that the only damage done by the leakage from the canal was to the northerly half, and conclude that there was legal damage to the northerly half only in respect to the use of the land for cutting fire wood of twenty-five dollars per annum throughout the period. The Suiter claims and judgments, if there were such, were wholly irrelevant, and no argument can legitimately be based thereon. The part of appellant's brief beginning with the last paragraph on page 3 to the middle of page 5 is ordered deleted as scandalous and without justification in the record. All concur, except Lewis, J., who dissents and votes for affirmance. (The judgment awards claimant damages to real estate caused by leakage of the Barge canal.)