Heninger v. Dunn

• Citation: 162 Cal.Rptr. 104,101 Cal.App.3d 858
• Court: California Court of Appeals
• Decision Date: 05 February 1980
• Parties: David C. HENINGER et al., Plaintiffs and Appellants, v. Bernard J. DUNN et al., Defendants and Respondents. Civ. 46573.

Page 104

162 Cal.Rptr. 104

101 Cal.App.3d 858

David C. HENINGER et al., Plaintiffs and Appellants, v. Bernard J. DUNN et al., Defendants and Respondents.

Civ. 46573.

Court of Appeal, First District, Division 4, California.

Feb. 5, 1980.

Tichinin & Mitchell, Bruce Tichinin, Morgan Hill, for plaintiffs and appellants.

Frederick L. Grundy, Campbell, for defendants and respondents.

CHRISTIAN, Associate Justice.

Appellants David and Eliza Heninger sued respondents Bernard and Elise Dunn for an injunction and damages for trespass. After a nonjury trial the court granted injunctive relief as prayed, but denied any award of damages. The appeal challenges the judgment insofar as it denied damages.

In April 1971 respondents, who owned mountain land adjoining land owned by appellants, bulldozed a rough road, approximately seven-tenths of a mile long, on appellants' land. Respondents acted despite appellants' objections, relying on the advice of an attorney who had erroneously told respondents that they held a valid easement permitting the cutting of the road. The bulldozing killed or damaged 225 trees, and destroyed much vegetative undergrowth, but the road provided additional access to appellants' property, thereby increasing its market value $5,000 from $179,000 just before the trespass to $184,000 immediately following the trespass.

The trial court found that it was technically possible to replace the dead or dying trees, at a cost of $221,647, and that the vegetative undergrowth could be restored at a cost of $19,610. But the court denied damages because there was no depreciation in the value of appellants' property, concluding that "(i) t is the rule in California that if the cost of repair or restoration of damaged property amounts to more than its depreciation in value because of the damage, the plaintiff cannot obtain a greater sum than the amount of the depreciation." Appellants contend that the court's understanding of the rule of damages was incorrect, and that the proper measure of their damages was the lesser of costs of restoration or the pretrespass value of their property, i. e., $179,000.

The measure of damages in California for tortious injury to property is "the amount which will compensate for all the detriment proximately caused thereby . . .." (Civ.Code, § 3333.) Such damages are generally determined as the difference between the value of the property before and after the injury. (Johns, California Damages (2d ed. 1977) § 6.28, p. 297; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 918, p. 3203.) This measure of damages has been used to compensate a plaintiff for damages resulting from injury to trees located on his property. (Altpeter v. Postal Telegraph-Cable Co. (1917) 32 Cal.App. 738, 741, 164 P. 35.) Diminution in market value, however, is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff's loss. "There is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case will be adopted." (Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 606, 271 P.2d 122, 138; see also Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 576, 136 Cal.Rptr. 751; Rest.2d Torts, § 929.)

One alternative measure of damages is the cost of restoring the property to its condition prior to the injury. (Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d at p. 576, 136 Cal.Rptr. 751; Rest.2d Torts § 929.) ¹ Courts will normally not award costs of restoration if they exceed the diminution in the value of the property; the plaintiff may be awarded the lesser of the two amounts. (Rest.2d Torts, § 929, com. b.) It has been said that the rule in California is the same. (Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d at p. 576, 136 Cal.Rptr. 751; 4 Witkin, Summary of Cal.Law, Torts, § 919, p. 3204. Cf. Herzog v. Grosso (1953) 41 Cal.2d 219, 226, 259 P.2d 429 (defendant argued award for diminution in value was error where cost of restoration was less; held that defendant failed to prove restoration costs less than diminution in value).)

Appellants contend that the California rule for recovery of restoration costs differs, and entitles them to recover the lesser of restoration costs or the value of their property prior to the injury (i. e., $179,000), rather than the lesser of restoration costs or the diminution in value. They cite numerous California decisions that have invoked the following rule of damages for negligent injury to land: if the cost of restoration is less than the value of the property prior to the injury, such cost is the proper measure of damages, but if the cost of restoration exceeds such value, the value of the property is the proper measure. (See, e. g., Green v. General Petroleum Corp. (1928) 205 Cal. 328, 336, 270 P. 952; Salstrom v. Orleans Bar Gold Min. Co. (1908) 153 Cal. 551, 558, 96 P. 292; Charles v. Reuck (1960) 179 Cal.App.2d 145, 147, 3 Cal.Rptr. 490; Basin Oil Co. v. Baash-Ross Tool Co., supra, 125 Cal.App.2d 578, 606, 271 P.2d 122; Sager v. O'Connell (1944) 67 Cal.App.2d 27, 31, 152 P.2d 569; Kell v. Jansen (1942) 53 Cal.App.2d 498, 503, 127 P.2d 1033.) But these decisions are properly understood as stating, within the context of a total diminution in value, an obvious adjunct of the general rule that a plaintiff who seeks restoration damages cannot recover more than the amount of diminution in the value of the land, i. e., that a recovery for diminution in value can never exceed the value of the land prior to the injury. Each decision has been cited in support of the general rule. (See Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d at p. 576, 136 Cal.Rptr. 751; 4 Witkin, Summary of Cal.Law, Torts, § 919, p. 3204.)

The rule precluding recovery of restoration costs in excess of diminution in value is, however, not of invariable application. Restoration costs may be awarded even though they exceed the decrease in market value if "there is a reason personal to the owner for restoring the original condition" (Rest.2d Torts, § 929, com. b, at pp. 545-546), or "where there is reason to believe that the plaintiff will, in fact, make the repairs" (22 Am.Jur.2d, Damages, § 132, at p. 192). These variations have not yet been expressly recognized in California (see 4 Witkin, Summary of Cal.Law, Torts, § 919, p. 3204), but in Mozzetti v. City of Brisbane, supra, the court emphasized that the rule limiting recovery to the lesser of restoration costs or diminution in value is only a "general rule" (67 Cal.App.3d at p. 576, 136 Cal.Rptr. 751).

One California case authorized recovery of restoration costs that exceeded diminution in value. In Dandoy v. Oswald Bros. Paving Co. (1931) 113 Cal.App. 570, 572-573, 298 P. 1030, 1031, the defendant had dumped earth and soil on the plaintiff's land, but the trial court determined that as a result, the value of the land had been increased. The appellate court reversed the judgment for the defendant, noting that the restoration costs were less than the original value of the property. "To hold that appellant is without remedy merely because the value of the land has not been diminished, would be to decide that by the wrongful act of another, an owner of land may be compelled to accept a change in the physical condition of his property, or else perform the work of restoration at his own expense. This would be a denial of the principle that there is no wrong without a remedy." (Id.) The statement that the appellant had been wronged, despite the fact that the value of his property had been increased, implies a conclusion that the appellant had personal reasons for restoring the property to its previous condition and would in fact make the repairs. Similar considerations appear to have guided another court in limiting a plaintiff's recovery to "the injury sustained" from the digging of a ditch upon his land: "It is possible that the cost of filling up the ditch may far exceed any injury resulting from it in its present condition, and in that case it is not probable that the amount recovered would ever be used for that purpose." (De Costa v. Massachusetts Mining Co. (1861) 17 Cal. 613, 617.) From these decisions, and from the absence of any authority rejecting the "personal reason" exception to the rule that recoverable damages cannot exceed diminution in value, it is to be concluded that the exception is viable in California.

The "personal reason" exception has been invoked in many jurisdictions in cases involving destruction of shade or ornamental trees that were of personal value to the owner. In recent years, "courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value or that their destruction may, indeed, even enhance the market value of the property." (Rector, etc. v. C. S. McCrossan (1975) 306 Minn. 143, 146, 235 N.W.2d 609, 610.) Where such trees or shrubbery are destroyed by a trespasser, "(s)ound principle and persuasive authority support the allowance to an aggrieved landowner of the fair cost of restoring his land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land . . .." (Huber v. Serpico (1962) 71 N.J.Super. 329, 345, 176 A.2d 805, 813. Accord, Ragland v. Clarson (Fla.App.1972) 259 So.2d 757, 757, 759; Roark v. Musgrave (1976) 41 Ill.App.3d 1008, 1013, 355 N.E.2d 91, 95; Samson Construction Co. v. Brusowankin (1958) 218 Md. 458, 466-467, 147 A.2d 430, 435-436, 69 A.L.R.2d 1326, 1332; Rector, etc. v. C. S. McCrossan, supra, 306 Minn. at p. 146, 235 N.W.2d at p. 610; Morris v. Ciborowski (1973) 113 N.H. 563, 566, 311 A.2d 296, 299; Thatcher v. Lane...