by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
The following case (and reporter's comments) are reported by DIRT reader Eric Kades, on the law faculty at Wayne State University Law School. Thanks, Eric.
Law Professors: I could hardly imagine a better case for first week in property law class. Be sure to give it a look.
TRESPASS; DAMAGES; PUNITIVE DAMAGES: Wisconsin recognizes punitive damages without actual damages in intentional trespass case.
Jacque v. Steenberg Homes, Inc., 1997 Wisc. LEXIS 53 (May 16, 1997).
Defendant needed to deliver a mobile home, and the most economical path by far went across the plaintiff's land. Plaintiffs (an elderly couple), however, had previously lost $10,000 worth of lakefront property to adverse possessors and refused the defendant's repeated requests to cross their land.
Then one morning one of the plaintiffs saw the mobile home on the road near plaintiffs' property and asked the defendant's employees how they intended to deliver it. They outlined their path; plaintiff informed them that they would be crossing his land. He summoned neighbors and the employees called their assistant manager. When everyone arrived, plaintiff produced maps to prove the proposed path crossed his land. He flatly refused to entertain the assistant manager's offers to pay for entry, and unambiguously denied defendant any access to his land. As the assistant manager walked away, he told his employees, "I don't give a f--- what [he] said, just get the home in there any way you can."
The employees went up the road and out of sight, blocked access to the road with their truck, cut a path across the plaintiffs' snow- covered farmland with a "bobcat,' and delivered the home to plaintiffs' neighbor (a summer resident who was apparently not present). The assistant manager laughed when told of the employee's methods.
Plaintiffs sued for intentional trespass. The jury awarded $1 in nominal damages and $100,000 in punitives. The trial court., on a post-judgment motion, ruled that under Wisconsin law punitive damages were unavailable in the absence of actual (compensatory) damages. The court of appeals affirmed.
On appeal, held: Reversed: The Wisconsin Supreme Court held that punitive damages are available for intentional trespass, whether or not the plaintiff suffered any compensatory damages. The court emphasized that one of the fundamental sticks in the property bundle is the right to exclude, and, citing an old English case, rhetorically asked, "in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?"
The court also discussed society's interest in providing a remedy against trespass so that landowners do not resort to self-help (and attendant disturbances of the peace). The only way to deter intentional trespasses, in order to protect private rights and societal peace, is to assess punitive damages, the court concluded. The court admitted it was overruling a previous case, but applied its new rule retroactively and reinstated the jury's $100,000 punitive award.
The court, apparently outraged, declined to remand the case for consideration of the defendant's motion for remittitur (which had become moot when the trial judge granted the defendant complete relief from the punitive verdict).
Reporter's Comment 1: Perhaps the most intriguing facet of this case is that it may illustrate the need for broader rights of private condemnation, at least of temporary easements. While the plaintiffs are very sympathetic landowners, what if they were obnoxious young yuppies trying to extort value from a poor farming neighbor for the right to cross their land and deliver the mobile home? After all, the defendants were not trespassing out of spite; they were engaged in productive activity. Should the law consign such defendants (and their customers) to a bargaining game with owners of least-cost paths for one-time or infrequent use, or should it grant right of usage at a fair (court-determined) price?
Reporter's Comment 2: A couple other tidbits from the case (1) Plaintiffs' lawyer tells me that they lost the $10,000 worth of land to adverse possessor because their previous lawyer filed an answer one day late. There was a malpractice settlement, he believes. (2) Plaintiffs' lawyer filed a motion for addittur at trial; the Wisconsin Supreme Court addressed the remittitur but not the addittur, and so the plaintiffs plan to ask for more than the $100,000 on remand.
Editor's Comment 1: Althought neither the editor nor the reporter were present that cold afternoon, the editor takes a very different lesson from the case. It appears that the defendants had sought permission to cross plaintiffs' land even prior to sale of the mobile home to the neighbors, and plaintiffs consistently had refused permission. There was an access road to the neighbors' property, but it would have been difficult to use the access in the snowy season. Of course, there were alternative delivery times, and, of course, many lots have difficult access for delivery of a large mobile home. Defendants in short, had no "vested right" to deliver a mobile home in the dead of winter, and in fact had been told, before they contracted to sell the house, that they had no access to deliver it. In the editor's view, deliberate violation of recognized rights of private property is not "productive activity." Sock it to 'em, Wisconsin.
Editor's Comment 2: Obviously there are moments when the public interest in the use of someone's private property justifies that there be an invasion of property rights. Through the process of the eminent domain system, we have a method for evaluating when these moments arise. These situations are rare, and it is appropriate that we judge carefully when they exist. There should be clear standards delimiting the discretion of a court making a judgment that public interest overwhelms private interests in this regard. This judgment should not be left to an ad hoc judicial determination balancing "productive purpose" against "reasonableness of objection."
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