Weisswasserv.Chernick

Michigan Court of AppealsAug 23, 1977
77 Mich. App. 681 (Mich. Ct. App. 1977)
77 Mich. App. 681259 N.W.2d 357

Docket No. 77-2645.

Decided August 23, 1977.

Appeal from Oakland, Robert L. Templin, J. Submitted July 18, 1977, at Lansing. (Docket No. 77-2645.) Decided August 23, 1977.

Complaint by Daniel Weisswasser and Beatrice Coleman, as co-guardians of Lillian Weisswasser, and others against Michael 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 reconsideration, judgment for plaintiffs affirmed.

Pence, Rogers, Carlson Flynn, for plaintiffs.

Marvin A. Canvasser and Felix S. Kubik, for defendants.

Before: BASHARA, P.J., and N.J. KAUFMAN and D.F. WALSH, JJ.


ON REMAND


Defendants were found to have intentionally trespassed on plaintiffs' land and were assessed treble damages amounting to $64,800, pursuant to MCLA 600.2919; MSA 27A.2919. On appeal, this Court reversed, finding that plaintiffs had not sustained their burden of proof by not showing that all the tenants-in-common had not, in fact, consented to defendants' entry, citing Padman v. Rhodes, 126 Mich. 434; 85 N.W. 1130 (1901).

68 Mich. App. 342; 242 N.W.2d 576 (1976).

That decision was reversed on May 2, 1977, by the Supreme Court in a per curiam opinion holding that testimony by one of the tenants that he did not grant consent coupled with the circumstantial evidence of nonconsent was sufficient to satisfy plaintiffs' burden of proof. This case was thereupon remanded to us for consideration of the remaining issues raised by defendants on appeal.

Because the Supreme Court has definitively answered all questions as to defendants' liability, the only remaining issue we need discuss is whether the trial court erred in its instructions to the jury as to the standard to be used for computing damages. The trial court instructed the jury that it could consider replacement costs in determining damages.

Under MCLA 600.2919; MSA 27A.2919 (and its predecessors), damages are measured by the loss of value of the freehold interests of the owner as a result of the removal of any enumerated materials. Achey v Hull, 7 Mich. 423, 430 (1859), Miller v. Wykoff, 346 Mich. 24, 26-27; 77 N.W.2d 264 (1956), Schankin v. Buskirk, 354 Mich. 490, 494; 93 N.W.2d 293 (1958). Defendants contend that this standard precludes replacement costs as a measure of damages. However, in Schankin v. Buskirk, supra, at 494, the Supreme Court was careful to point out that:

"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."

Furthermore, in Kelly v. Fine, 354 Mich. 384, 388; 92 N.W.2d 511 (1958), and in Schankin v. Buskirk, supra, at 496, the Supreme Court held that replacement and restoration costs are proper elements for the jury to consider in assessing damages.

Therefore, since the trial court did instruct the jury that they must "determine the amount of money which would reasonably, fairly and adequately compensate plaintiffs for the injury to their property", the instruction that they could consider replacement costs in making that determination does not constitute reversible error.

We have carefully reviewed all other allegations of error and find none to be persuasive.

Affirmed.