Gross v. Capital Elec. Line Builders, Inc., 68,982

• Decision Date: 29 October 1993
• Docket Number: No. 68,982,68,982
• Parties: William P. GROSS and Laverne Gross, Appellants, v. CAPITAL ELECTRIC LINE BUILDERS, INC., State of Kansas, Ray A. Wards, and Timothy C. Hepner, Appellees.
• Court: Kansas Supreme Court

Page 1326

861 P.2d 1326

253 Kan. 798

William P. GROSS and Laverne Gross, Appellants, v. CAPITAL ELECTRIC LINE BUILDERS, INC., State of Kansas, Ray A. Wards, and Timothy C. Hepner, Appellees.

No. 68,982.

Supreme Court of Kansas.

Oct. 29, 1993.

Syllabus by the Court

In an action brought by the owners of a vacant car lot for damages for trespass, violation of their civil rights, and taking property without due process and just compensation under the Fifth Amendment to the United States Constitution, the record is examined and it is held that the district court: (1) erred in granting summary judgment in favor of the defendants on the plaintiffs' claim for trespass, and (2) did not err in granting summary judgment in favor of defendants on the plaintiffs' claims under 42 U.S.C. § 1983 (1988) and the Fifth Amendment to the United States Constitution.

F. Russell Peterson, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, argued the cause, and Paul Hasty, Jr., of the same firm, was with him on the briefs for appellants.

David W. Hauber, of Boddington & Brown, Chtd., of Kansas City, argued the cause and was on the brief for appellee Capital Elec. Line Builders, Inc.

David C. Wetzler, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and John W. Campbell, Deputy Atty. Gen., were on the brief for appellees State of Kan., Ray A. Wards, and Timothy C. Hepner.

ALLEGRUCCI, Judge:

The plaintiffs, William and Laverne Gross, brought this action, alleging that each of the defendants trespassed and that Capital Electric Line Builders, Inc., (Capital) the State of Kansas, and Kansas Highway Patrol Officers Ray Wards and Timothy Hepner took their property without compensation and violated their civil rights. The district court entered summary judgment against the Grosses. They appealed, and the case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3017.

William and Laverne Gross own property at 9006 W. 63rd, Shawnee Mission, Kansas. The Merriam Toyota automobile dealership formerly was located there. No business operated at the location for several years prior to and including 1989.

For approximately the first six months of 1989, the Grosses were in Florida. It was during their absence or shortly after their return that Capital and the State used the parking lot.

Capital was installing lights and traffic signals as part of the I-35 reconstruction project near the parking lot. Employees of Capital, who were driving pickups for the company and personal vehicles, parked on the lot during an 8- to 12-week period. Capital admits that it trespassed on the Grosses' property.

Also in connection with the reconstruction project on I-35, other contractors, including Clarkson Construction Company, had trucks and equipment on the parking lot. Clarkson was not sued by the Grosses.

Sometime in 1989, Ray Wards and Timothy Hepner of the Motor Carrier Inspection Troop of the Kansas Highway Patrol spent approximately two hours in the Grosses' parking lot weighing trucks. They were operating a Mobile Enforcement Unit and selected the vacant parking lot as a safe location for the operation. The portable scales weighed approximately 35 pounds and were taken to the parking lot in a passenger car. Eight to ten trucks were weighed on the Grosses' property.

William Gross testified that there were cracks in the asphalted parking lot before 1989. He testified: "This was cracked (indicating). This wasn't cracked at--it was all cracked. Sure, it was cracked. Asphalt cracks." When he was asked, "Can you tell me whether the cracking in the parking lot was any different before and after you learned of any alleged trespassing?" he answered, "Oh, yes. It was severe afterwards." Gross also testified that he had no way of quantifying the damage he alleged had been done by Capital and the State.

The district court entered summary judgment against the Grosses and in favor of Capital, the State, Wards, and Hepner on the Grosses' claim of trespass, principally for the reason that no damages were shown. The district court concluded that the modern rule with respect to trespass is that damages will not be inferred as a matter of law and that the modern rule should be applied in the present case. The district court cited as authority Maddy v. Vulcan Materials Co., 737 F.Supp. 1528 (D.Kan.1990) , and Gobin v. Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982).

On appeal, the Grosses argue that the rule stated in Hefley v. Baker, 19 Kan. 9 (1877), which allows a trespass plaintiff who can show no actual loss to recover nominal damages, is still the law in Kansas. They distinguish Maddy as being a "hybrid cause of action that has come about through the combining of nuisance law and physical tangible trespass law," whereas the present case is a classic case of trespass on the premises of another. They further contend that the "modern trend" which the federal district court discussed in Maddy does not exist. Finally, they contend that Gobin does not support the proposition that the courts of this state are moving away from awards of nominal damages in intentional tort actions.

Capital concedes that as recently as the decision in Longenecker v. Zimmerman, 175 Kan. 719, Syl., 267 P.2d 543 (1954), this court held that "[f]rom every unauthorized invasion of the person or property of another, the law infers some damage without proof of actual injury." It urges the court, however, to abandon a rule when the reason for it no longer exists, citing Carroll v. Kittle, 203 Kan. 841, 848, 457 P.2d 21 (1969) (abolishing governmental immunity).

Capital suggests that the principles announced in Gobin and Maddy offer guidance, but it does not represent that they are controlling in the present case. Capital advocates that the rule of presumed damages in trespass cases should be abolished because it is not supported by public policy and is not consistent with modern tort law.

Capital reviews "modern" tort cases from other states which variously recognize or do not recognize distinctions between tangible and intangible or intentional and negligent invasions of the property of another. We find none of them to be germane except perhaps to demonstrate that the law governing trespass is not static.

Not surprisingly, the State defendants join Capital in advocating that this court abandon the rule of presumed damages in trespass cases. They urge that limited judicial resources "are best spent on real cases with real damages. Any legal fictions which support [the Grosses'] action need to be assigned to the museum of legal history."

In Maddy, the federal district court granted Vulcan Materials Company's motion for summary judgment on the Maddys' trespass claim. The Maddys were neighbors of the manufacturer, and they complained of airborne pollution from Vulcan. The Maddys did not claim that their property suffered physical damage; they claimed economic damages arising from a diminution of the market value of their property and the costs of moving. 737 F.Supp. at 1539. The federal district court reviewed the traditional rules relating to trespass that required an invasion of the plaintiff's property by tangible matter. It observed:

"However, a modern trend has emerged under which airborne pollution may constitute a trespass, where the plaintiff can demonstrate physical damage to his property. Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 709 P.2d 782 (1985); Wilson v. Interlake Steel Co., 32 Cal.3d 229, 185 Cal.Rptr. 280, 649 P.2d 922 (1982); Born v. Exxon Corp., 388 So.2d 933 (Ala.1980); Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979). See Annotation, Recovery in Trespass for Injury to Land caused by Airborne Pollutants, 2 A.L.R.4th 1054 (1980) (collecting cases). The modern trend departs from the traditional rule by finding that intangible invasions of the plaintiff's property may constitute a trespass. However, the modern trend also departs from traditional trespass rules by refusing to infer damage as a matter of law, thereby eliminating the right to nominal damages. The plaintiff claiming trespass must prove that the intangible invasion resulted in substantial damages to the plaintiff's land." 737 F.Supp. at 1539.

The federal district court adopted the "modern view" that an intangible invasion may constitute an actionable trespass if the property owner can show substantial physical damage to the property. 737 F.Supp. at 1540. Under this modern view, no damage to the property is inferred by an intangible invasion. There is no right, therefore, to nominal damages. The Maddys alleged an intangible invasion, but failed to allege or prove injury to their property. Even under the modern view, therefore, the Maddys could not recover in trespass. 737 F.Supp. at 1541.

Maddy is distinguishable from the present case, where the Grosses alleged a tangible rather than an intangible invasion of their property. The Grosses alleged that trucks were driven and parked on their property, as contrasted with the Maddys, who had alleged that airborne gases had migrated from Vulcan's property onto their own.

In the present case, Capital convinced the district court that Gobin stood for the proposition that this court is moving away from the old practice of awarding nominal damages in intentional tort actions. Gobin was neither a public official nor a public figure. He alleged that the Dodge City Daily Globe published a news story about his pleading guilty to a charge of cruelty to animals which was false, libelous, and defamatory. 232 Kan. at 2, 649 P.2d 1239.

In Gobin, this court was presented with a case in which the plaintiff in a libel action did not allege or prove injury to his reputation. The court decided that the courts of Kansas would not permit the recovery of damages for mental anguish in a libel or slander action without a showing of damage to reputation. 232 Kan. at 7, 649...