THE APPRAISAL OF DAMAGES 121 



d. Values must ordinarily have a commercial or utilitarian 

 basis, but aesthetic values, or the value of " legitimate gratifi- 

 cation" ( 4), must be recognized whenever based on elements 

 generally accepted by the public at large. Sentimental value 

 peculiar to the owner cannot be admitted. 



e. Loss of income may be made the basis of damages; but 

 this loss should be discounted to the present, and will then equal 

 the loss in capital value. 



/. Cost of restoration, while frequently ruled out, is admitted 

 when shown to be less than value, or when value is difficult to 

 determine. 



g. Ordinary "profits" or income is the basis of damages. 

 Excessive profits, which do not allow for normal losses, and 

 speculative or contingent profits, which depend upon uncertain 

 future factors, such as increased prices, are not admitted. The 

 element of time, intervening between the damage and the real- 

 ization of profit, does not bar the consideration of these profits 

 provided they are reasonably certain to occur and are properly 

 discounted. 



h. Damages must be actual, present, imminent or reasonably 

 certain to occur. The damage itself may be indirect, but it 

 must be proximate, or traceable directly to the offending cause, 

 as, for instance, the destruction of crops, due to cattle, through 

 leaving a gate open. The physical destruction of property by 

 fire is an actual present damage. The cause may be a spark 

 from a defective locomotive igniting the debris upon an improp- 

 erly cleared right of way, several miles from the property 

 destroyed. The determination of the money value of the dam- 

 age is the only element of uncertainty in the process.* 



* The entire subject of damages is the source of wide differences of legal opinion 

 and practice in different states. Precedents and rules adopted in one state are 

 frequently at variance with the decisions in other states. The measurement of 

 damages is largely a determination of facts rather than of legal principles; the 

 ascertaining of the amount and character of the injury done to the property and 

 consequent income of the plaintiff. The above rules appear to agree with the 

 principles laid down in Sedgwick on Damages, Qth Ed., Vol. 3, 931 to 933. 

 The contention of foresters that expectation value, where it can be determined, is 

 the basis of damages, finds its clearest legal expression in rule b above, in which 

 form it is receiving increasing recognition in state courts. See reference above for 

 citations of cases. 



