Burtraw v. Clark

• Citation: 103 Mich. 383,61 N.W. 552
• Court: Supreme Court of Michigan
• Decision Date: 28 December 1894
• Parties: BURTRAW v. CLARK ET AL.

61 N.W. 552

103 Mich. 383

BURTRAW v. CLARK ET AL.

Supreme Court of Michigan

December 28, 1894

Error to circuit court, Ionia county; Sherman B. Daboll, Judge.

Trespass by Louisa Burtraw against Henry C. Clark and another. Judgment for plaintiff, and defendants bring error. Reversed.

Chaddock & Scully, for appellants.

John Nichol and F. H. Stowe, for appellee.

HOOKER J.

Defendant dug a drain across the premises of the plaintiff, under drain proceedings that were void. It was admitted to be a trespass. Upon the trial the defendant claimed the right to show that such ditch was a benefit, and not an injury, to plaintiff's land, and that the damages should be nominal. The court refused to permit this, and confined the evidence of damages to the amount that would be required to place the land in its former condition, by filling the ditch, etc which he held that plaintiff had the right to recover. The law aims to compensate parties for injuries, and ordinarily the rule that makes the injured party whole is a safe rule to adopt; but it is not invariably so, for such person owes some duty to a trespasser. In the majority of cases little difficulty is experienced, because the trespass is clearly injurious, and the cost of repair, where feasible, and the shrinkage in value, where it is not, furnish fair measures of damage. In a case where rebuilding is a physical impossibility there is no alternative but to apply the latter rule; and, on the other hand, where it is possible, there is perhaps no good reason why a plaintiff should not recover the reasonable cost thereof incurred in good faith; and under the rules laid down in Allison v Chandler, 11 Mich. 542, perhaps the court should not be too reluctant to apply this rule, though it should bear heavily upon the defendant. But there are limits to its application. While it would be plainly absurd to deny to a plaintiff, by way of damage for the destruction of a few rods of fence, the expense actually incurred, or perhaps the prospective cost of rebuilding the same, upon the ground that his measure of damages should be the shrinkage in value of a thousand acres of land owing to such destruction, it would be as unjust to say that he should be allowed to recover the amount necessary to replace his farm, which had sunk into defendant's mine, where the filling of the hole caused thereby, though a physical possibility, would necessarily be attended by an expenditure of an amount many times the value of the farm in its former condition. In such case the value...