Daily Development for Wednesday, September 3, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

Here are two recent cases dealing with alternatives to “diminution in value” measurements of damages in the case of nuisance.  Threats of the possibility of restoration damages often are quite useful in settlement, and these two cases that make such threats credible or better.  Ed.   

NUISANCE; TRESPASS; DAMAGES:  Neighbors who had landowner's trees cut to improve their ocean view are liable for cost of restoration, and not just for diminution in value, trebled under trespass statute.  Glavin v. Eckman, 881 N.E.2d 820, (Mass.   App .Ct. 2007).

Eckmans owned a parcel of land on Martha's Vineyard close to the land of Glavin. Glavin owned two parcels to the west of the Eckmans. The closer of the two featured a knoll that previously contained a stand of ten oak trees providing shade to wetlands that Glavin planned to convert into a pond. In 1996, Eckmans asked Glavin for permission to trim or cut down the trees to improve their view of the ocean, which Glavin denied. In 2001, Eckmans hired Jon Fragosa and his landscaping company ("Fragosa") to top and remove various trees on their property to improve their water view. Eckmans and Fragosa did not walk the boundaries of their land, but Fragosa was instructed to open the ocean view "to the max."

While cutting down trees, Fragosa crossed fifty to one hundred feet across the boundary line onto Glavin's land and cut down all ten oak trees, which measured from eleven to thirty inches in diameter. It was readily apparent that the oaks were not on the Eckmans' property.

Neither Eckmans nor Fragosa contend that they had good reason to believe that the oaks were on the Eckmans' property. Massachusetts statues  prohibit the willful cutting down or destruction of trees on the property of another, and a person who does so with no good reason to believe the trees were on their own property is liable for treble damages. At trial, the Eckmans were held liable for the destruction of the trees because they had instructed Fragosa to maximize their view and "retained ultimate control over the scope of Fragosa's work.

The jury rendered a special verdict on favor of Glavin and ordered damages of $30,000 as reasonable cost of restoration of the trees. Additionally, because the Eckmans and Fragosa had no good reason to believe the trees were on the Eckmans' property, treble damages were assessed.

The defendants argued on appeal that the trial court had erred it permitted the jury to measure damages as cost of restoration rather than as timber value or diminution of market value of the property.

The appellate court held that generally, a plaintiff may opt for either the value of the timber cut or the diminution in value of his property as the measure of damages. But, where the diminution in value does not fairly represent the damages, the plaintiff may opt for restoration costs for damages.

At trial, Glavin showed that he planned to create a pond from his wetlands, and that the oak trees would provide both shade for the pond as well as a backdrop to the view of the pond from his house, two losses that cannot be adequately measured by diminution in value. Replacing such old oak trees would be nearly impossible, so Glavin put forth expert arborists who testified about determining the cost-of-cure of the destruction of the oaks. These experts determined that replacement costs would be more than $55,000. The appellate court held that in light of the circumstances and the expert testimony, the $30,000 in damages awarded by the jury was not unreasonable, and that the General Laws mandated treble damages while showcasing a legislative intent to dissuade wrongdoers.  

Comment: Was it really the intent of the legislature to triple the damages even when they were restoration damages?  Typically the cost of restoration is invoked when it is higher, and such damages measures are not available, as this case shows, without special justification.  The owner just got a windfall when, in addition to the special justification, it got triple damages based upon restoration costs.  The outcome here strikes the editor as excessive. 

NUISANCE; DAMAGES:  Where trust beneficiary's house was held for personal use, had been her family's home for almost 80 years, and damage to the house was permanent, the proper measure of damages against neighbor who caused the structural damage was the cost of repair to the house as opposed to the diminution of value attributable to the damage. LaSalle National Bank v Willis, 880 N.E.2d 1075 (Ill.App.1d., 2007).

Willis began work on his property, acting as his own general contractor. As part of this work he had the preexisting building torn down and built an expensive new residence for himself. Willis knowingly failed to take proper protective measures during the construction process to protect Witt's home, located next door, and as a result Witt's home suffered structural damage making the home unsafe, forcing Witt to move out and sell her home. LaSalle, Witt, and after her death, her estate, (collectively, the "Plaintiff") filed suit against Witt on a number of claims. As a motion in limine, Willis requested that the court bar all evidence of the cost or repair damages. The court denied Willis's motion, holding that the proper measure of damages was the cost of repair but certified the issue for appeal.

The Appellate Court was asked to decide whether the proper measure of damages was the difference between the market value of the property before the injury and its value after the injury, or in the alternative, the reasonable expense of repairs to restore the property to its original condition.

The court found that the a fact based inquiry provides the correct answer in any given case. First, relying on Arras v Columbia Quarry Co., 367 N.E.2d 580 (Ill.App.2d., 1977), the court held that a court must look to the nature of the thing injured to determine whether an injury to realty is permanent or temporary, and in cases where the injury is not permanent, the ordinary  proper measure of damages is the cost of repair.  Second, a court must look at the exact interest harmed. When land is held for a personal use such as a family residence and the harm may be corrected with a reasonable expenditure even though the expenditure exceeds the amount the land has diminished in value, again, the the cost of repairs is ordinarly the proper measure of damages.

The court noted that if the proper measure of damages in these cases was held to be the change in fair market value, such a holding would effectively give owners a right of private eminent domain.

The court also distinguished the present case from Ceres Terminals, Inc. v Chicago City Bank & Trust Co., 635 M.E.2d 485 (Ill.App.3d., 1994) in which the proper measure of damages was change in fair market value primarily on the basis that the property in Ceres was commercial property and therefore the owner could be made whole by an award of the diminution of fair market value. Here, where the damage to the property was reparable and the property owner had an interest in having the property restored to its original condition, the proper measure of damages was the cost of repair plus the value of the loss of use of the building during the time of repair.

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