Hawley v. Mowatt

• Decision Date: 05 April 2007
• Docket Number: No. 05CA1572.,05CA1572.
• Citation: 160 P.3d 421
• Parties: Norma A. HAWLEY and Larry N. Hawley, Plaintiffs-Appellees and Cross-Appellants, v. David S. MOWATT, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

160 P.3d 421

Norma A. HAWLEY and Larry N. Hawley, Plaintiffs-Appellees and Cross-Appellants, v. David S. MOWATT, Defendant-Appellant and Cross-Appellee.

No. 05CA1572.

Colorado Court of Appeals, Div. V.

April 5, 2007.

Cazier & McGowan, Rodney R. McGowan, John D. Walker, Granby, Colorado, for Plaintiffs-Appellees and Cross-Appellants.

Springer and Steinberg, P.C., Matthew R. Giacomini, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge VOGT.

Defendant, David S. Mowatt, appeals a trial court judgment in favor of plaintiffs, Norma A. Hawley and Larry N. Hawley, on plaintiffs' complaint seeking damages and injunctive relief for trespass. Plaintiffs cross-appeal the trial court's order denying their request for attorney fees. We affirm the judgment, vacate the order denying fees, and remand with directions.

Mowatt and the Hawleys own adjacent home sites on Shadow Mountain Reservoir. The Hawleys sued Mowatt for trespass, claiming that his landscaping improvements encroached on their property. Mowatt asserted counterclaims for trespass and adverse possession.

The case was tried to a jury. At the conclusion of the evidence, the trial court directed a verdict for the Hawleys on Mowatt's adverse possession counterclaim and on his affirmative defense of consent. The jury awarded the Hawleys $15,000 in actual damages and $15,000 in exemplary damages. The trial court entered judgment on the verdict, granted the injunctive relief requested by the Hawleys, awarded the Hawleys their costs, but denied their motion for attorney fees.

I.

At trial, the Hawleys testified to a broad range of damages—including direct monetary losses, annoyance, and inconvenience— caused by Mowatt's trespass. The jury was instructed that any damages award could include the reasonable cost of restoring the Hawleys' property and the decrease, if any, in the restored property's value; loss of use, loss of income, and any expense incurred as a result of the trespass; and any "discomfort, annoyance and inconvenience" caused by the trespass. However, discomfort, annoyance, and inconvenience damages could not include "any damages resulting from emotional distress, if any, caused by [Mowatt's] actions." The jury was further instructed that it was to consider "all damages suffered by [the Hawleys] from the date of [Mowatt's] first trespass up to today's date" and that "[c]osts, expenses, fees, or loss of employment income that are incurred as a result of the litigation of this action are not to be considered . . . as a basis for an award of damages."

Mowatt contends on appeal that the trial court erred in its damages instructions and in allowing testimony regarding certain categories of damages. We find no reversible error.

A.

At trial, Mowatt argued that the Hawleys could present evidence of, and recover, only such damages as they sustained up to the time they filed their complaint. The trial court, however, allowed the Hawleys to present evidence of damages incurred up to the time of trial, and, as noted, instructed the jury over Mowatt's objection that it could consider damages suffered by the Hawleys "up to today's date." Mowatt contends the trial court erred in so ruling. We disagree.

The purpose of an award of compensatory damages is to make the injured person whole by reimbursing him or her for the actual loss suffered. See Board of County Commissioners v. Slovek, 723 P.2d 1309, 1316 (Colo.1986); Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286, 1288 (Colo.App.2005). Thus, in cases involving damages for injury to real property, including those in which recovery is sought on a trespass theory, the fact finder is required to determine, as nearly as possible, the actual loss suffered by the property owner. See Board of County Commissioners v. Slovek, supra, 723 P.2d at 1314; Colorado Bridge & Construction Co. v. Preuit, 75 Colo. 107, 109, 224 P. 222, 223 (1924); Gladin v. Von Engeln, 651 P.2d 905, 907 (Colo.App.1982).

The damages recoverable on a trespass claim depend in part on whether the claim alleges a "continuing trespass"—that is, a property invasion in which the offending party fails to remove continuing harmful physical conditions that are wrongfully placed on the land of another—or a "permanent trespass," which refers to a property invasion such as an irrigation ditch or a railway line that "will and should continue indefinitely because defendants, with lawful authority, constructed a socially beneficial structure intended to be permanent." Hoery v. United States, 64 P.3d 214, 218-20 (Colo. 2003).

In an action involving a permanent trespass, the landowner may recover not only past damages, but also "all prospective damages to the end of time." In contrast, a party injured by a continuing trespass may not recover future damages. Zimmerman v. Hinderlider, 105 Colo. 340, 347, 97 P.2d 443, 446 (1939); see Hoery v. United States, supra.

The property invasion here was a "continuing trespass," which had not been abated as of the time of trial. Thus, the Hawleys were not entitled to, and did not seek, recovery for any future or prospective losses. Their testimony in support of their damages claim related primarily to losses sustained before they filed their complaint. However, they also sought to recover for certain expenses—for example, the cost of storing their boat—that they had incurred after the lawsuit was filed but before the trial. We do not agree with Mowatt that the trial court erred in allowing the jury to consider such damages.

No Colorado case has directly addressed whether a plaintiff in a continuing trespass case may recover for damages sustained after the commencement of the action but before trial. Cases from other jurisdictions are split on the issue. Compare Krejci v. Capriotti, 16 Ill.App.3d 245, 305 N.E.2d 667, 670 (1973)(when trespass continues after commencement of action, owner is permitted to recover those damages measurable to time of trial); Schrunk v. Andres, 221 Minn. 465, 22 N.W.2d 548, 552-53 (1946)(damages accruing after filing of pleadings in continuing trespass action may be recovered if they result from acts done before commencement of action and continuing thereafter); Woldson v. Woodhead, 159 Wash.2d 215, 149 P.3d 361, 365 (2006) (concluding, as matter of first impression in Washington, that there was no basis for denying proven damages for injuries sustained after filing but before trial, where continuing trespass was not abated as of time of trial), with Lankford v. Dockery, 85 Ga.App. 86, 67 S.E.2d 800, 806 (1951)("Damages sustained by reason of . . . a continuing but not a permanent trespass are recoverable up to the time of bringing the suit, the reason being that the trespass . . . may or may not be continued after the suit is commenced, and if continued, a new cause of action arises therefor." (citations omitted)); Indiana, B. & W. Ry. v. Eberle, 110 Ind. 542, 11 N.E. 467, 471-72 (1887) (in action for continuing trespass, only such damages as accrued up to time of commencement of action are recoverable); Patchen v. Keeley, 19 Nev. 404, 14 P. 347, 349 (1887) (trial court did not err in refusing to allow proof of damages between commencement of action and date of trial, as such damages were not natural and necessary result of acts complained of in complaint); see also Dan D. Dobbs, The Law of Torts § 57, at 116 (2000) (plaintiff asserting continuing trespass may sue for "all harms that have occurred to the time of suit or trial" (emphasis added), but may not sue for future harms that would be incurred only if trespass continues); 75 Am. Jur.2d Trespass § 119 (1991) ("Continuing damages [for trespass] arising after the commencement of the suit may be awarded if they proceed from the act therein complained of as the cause of action."); 87 C.J.S. Trespass § 143 (2000) ("Plaintiff can recover only for trespasses which occurred before the commencement of the action. However, all damages growing out of the act as its direct and natural result can be recovered, although accruing after the action was brought.").

In support of his contention that the Hawleys could not recover damages sustained after commencement of this action, Mowatt cites language from three Colorado Supreme Court cases, Hoery v. United States, supra; Zimmerman v. Hinderlider, supra; and Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 (1889).

In a footnote in Hoery, the supreme court cited Middaugh for the proposition that: "Damages are available for continuing torts but are limited to injuries sustained up to the time of suit." Hoery, supra, 64 P.3d at 219 n. 7. Notably, Hoery refers only to the "time of suit," without further qualification. Middaugh, however, specifically states that "as to trespasses and nuisances that are not of a permanent character, damages can only be recovered for the injury sustained up to the time of the commencement of the suit, but, as to trespasses and nuisances that are of a permanent character, a single recovery may be had for the whole damage resulting from the act." Middaugh, supra, 12 Colo. at 444, 21 P. at 569. In Zimmerman v. Hinderlider, supra, 105 Colo. at 347, 97 P.2d at 447, the court observed that recovery in a "repeated trespass" situation may be had for "all damages accruing during the statutory period before the commencement of the action."

However, in none of these cases was the supreme court asked to decide the issue presented here. We conclude that the language on which Mowatt relies was either dictum or used in a different context, and that it does not compel the result he urges.

In Hoery, the court was addressing certified questions asking whether the continued migration of toxic chemicals from the defendant's property to the plaintiff's property, and the ongoing presence of those toxic chemicals on the plaintiff's property, constituted continuing trespass or nuisance under Colorado law. The answer to these questions was relevant...