Opinion
Docket No. 77-2645.
Decided March 21, 1978.
Appeal from Oakland, Robert L. Templin, J. Submitted July 18, 1977, at Lansing. (Docket No. 77-2645.) Decided March 21, 1978.
Complaint by Daniel Weisswasser and Beatrice Coleman, as co-guardians of Lillian Weisswasser, and others against Michael F. Chernick and others for damages for trespass. Judgment for plaintiffs. Defendants appealed. Reversed and remanded for entry of judgment for defendants, 68 Mich. App. 342 (1976). Plaintiffs appealed to the Supreme Court, which reversed and remanded to the Court of Appeals for further consideration, 399 Mich. 653 (1977). Upon consideration on remand, judgment for plaintiffs affirmed, 77 Mich. App. 681 (1977). Defendants moved for rehearing. Granted. Upon reconsideration, reversed and remanded.
Pence, Rogers, Carlson Flynn, for plaintiffs.
Marvin A. Canvasser and Felix S. Kubik, for defendant.
Before: BASHARA, P.J., and N.J. KAUFMAN and D.F. WALSH, JJ.
ON REHEARING
This case has been before this Court on two prior occasions. Originally, this Court reversed a lower court finding of intentional trespass, 68 Mich. App. 342; 242 N.W.2d 576 (1976), because plaintiffs had not sustained their burden of proof.
That decision was reversed by the Supreme Court, 399 Mich. 653; 252 N.W.2d 766 (1977), reh den, 400 Mich. 1029, remanding the case to us for consideration of the remaining issues raised by defendants on appeal.
Confining ourselves to the issue of damages, we held that the trial court did not err by instructing the jury that it could consider replacement costs in determining damages. 77 Mich. App. 681; 259 N.W.2d 357 (1977).
Defendants-appellants moved for rehearing, arguing that this Court's opinion on remand misread the cases cited as authority for its conclusion. We are constrained to agree.
The cases cited in the remand opinion for the proposition that replacement and restoration costs are proper elements for the jury to consider in assessing damages involved special circumstances not present in this case.
In Kelly v Fine, 354 Mich. 384; 92 N.W.2d 511 (1958), the owner of an occupied residential lot recovered costs to replace topsoil, which was intended to complete landscaping on the property.
In Schankin v Buskirk, 354 Mich. 490; 93 N.W.2d 293 (1958), the owners of a residential lot recovered the value of ornamental shade trees, which affected the aesthetic value of the property. In Schankin, however, the Supreme Court made the following statement about the measure of damages in trespass cases:
"Generally speaking, damages in trespass to land are measured by the difference between the value of the land before the harm and the value after the harm, but there is no fixed, inflexible rule for determining, with mathematical certainty, what sum shall compensate for the invasion of the interests of the owner. Whatever approach is most appropriate to compensate him for his loss in the particular case should be adopted.
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"We are not, with respect to ornamental or shade trees, restricted solely to a value-before and a value-after test for injury to the freehold. These are proper elements for the jury's consideration but it may consider, as well, the value of the trees themselves to the contemplated or existing uses of the land, including the cost of replacement or restoration, in those cases where, as here, the property destroyed has a unique value of its own." 354 Mich at 494, 496.
In this case there is no allegation that either the fill removed from the plaintiff's land or the trees destroyed in the earth moving process had any unique value of their own or any special aesthetic value to the owners. The proper measure of damages, therefore, is the difference between the value of the land before the trespass and the value of land after the trespass. See Governale v City of Owosso, 59 Mich. App. 756; 229 N.W.2d 918 (1975).
This case is reversed, therefore, and remanded to the trial court for a new trial on the issue of damages. The trial court shall instruct on diminution of value as the measure of damages, taking into consideration the above-quoted language of Schankin v Buskirk, supra. Additionally, because of the length of time already expended in the adjudication of this cause, the trial court is directed to hear this case as soon as is expeditiously possible. We do not retain jurisdiction.
It should be noted that the commercial value of the timber, minerals or other materials removed in a trespass to land may be considered in determining the diminution in the value of the freehold. Gates v Comstock, 113 Mich. 127; 71 N.W. 515 (1897). If the commercial value of what was removed by the trespass exceeds the diminution in the value of the freehold, it would be proper for the jury to award damages in an amount equal to the value of what was removed. See, Bockes v A McAfee Son Co, 165 Mich. 7, 10; 130 N.W. 313 (1911).
Reversed and remanded.