Keitges v. VanDermeulen
| Decision Date | 01 May 1992 |
| Docket Number | No. S-89-445,S-89-445 |
| Parties | James KEITGES and Cheryl Keitges, Husband and Wife, Appellants, v. Darrell S. VanDERMEULEN, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Damages. The principle underlying allowance of damages is to place the injured party in the same position, so far as money can do it, as he would have been had there been no injury or breach of duty, that is, to compensate him for the injury actually sustained.
2. Property: Damages. Where the injury is such that the premises may be restored to as good condition as it was before, the measure of recovery is the fair and reasonable cost and expense of such restoration.
3. Property: Damages. Where the land damaged can be returned to its prior condition by treatment, grading, or otherwise, the damage is temporary and the landowner is entitled to such expenses as part of his or her damages.
4. Actions: Property: Damages. In an action for compensatory damages for cutting, destroying, and damaging trees and other growth, and for related damage to the land, when the owner of land intends to use the property for residential or recreational purposes according to his personal tastes and wishes, the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber. Instead, he may recover as damages the cost of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible. However, the award for such damage may not exceed the market value of the property immediately preceding the damage.
5. Property: Damages. If improvements have been constructed on the damaged realty, recovery for restoration of damaged trees and vegetation is limited to an amount not exceeding the market value of the land as if it were unimproved.
6. Property: Damages: Evidence. When there is no factual question but that the plaintiff's intended use of the property is for residential or recreational purposes and the plaintiff seeks only to recover the cost of restoring his property, evidence relating to the land's diminution in value has no relevance, although evidence of the property's value immediately before the damage is relevant.
Barbara Thielen, of Taylor, Fabian, Thielen & Thielen, Omaha, for appellants.
Terry K. Gutierrez, of Gast & Peters, Omaha, for appellee.
This action was brought by the plaintiffs, James and Cheryl Keitges, to recover damages for the destruction of trees, shrubs, and vegetation on their property when the defendant, Darrell S. VanDermeulen, attempted to clear a path for the construction of a fence. The defendant's property is adjacent to the plaintiffs' land.
In the first cause of action of the amended petition, the plaintiffs sought treble damages under Neb.Rev.Stat. § 25-2130 (Reissue 1989) for willful trespass. In the second cause of action the plaintiffs sought damages for negligent trespass. The jury found that the defendant's trespass was not willful and returned a verdict in the amount of $3,340. The plaintiffs have appealed from that judgment.
The plaintiffs' 13 assignments of error, when summarized, allege that the district court erred in (1) failing to allow them to present evidence relating to the cost of returning their property to its condition as it existed prior to the defendant's trespass, and improperly instructing the jury on the issue of damages; (2) admitting photographic evidence offered by the defendant which depicted the site of defendant's trespass; and (3) overruling their motion for a new trial.
The record shows that the plaintiffs' land is a rectangular 10.01-acre tract of unimproved land in Washington County, which property they purchased in 1981 with the intention of someday building a house there. The southern one-third of the lot is planted in bromegrass, and the northern two-thirds of the lot is heavily wooded. At the trial, no evidence was presented to show that any of the trees on the plaintiffs' land had been deliberately planted. The evidence which was presented tends to show that the woods on the plaintiffs' land was a growth of trees and vegetation indigenous to that area. As of the date of the trial, the plaintiffs had not yet constructed a house on the land, but were using the property for recreational purposes such as "nature hikes" with their children.
The defendant, who raises thoroughbred horses, is the owner of an 11.88-acre tract of land which adjoins the east line of the plaintiffs' property. In December 1984, the defendant decided to construct a fence along the line between his land and the plaintiffs' land. He had previously asked the plaintiffs to share in the cost of such a fence, but the plaintiffs declined to do so.
After hiring a bulldozer operator, the defendant began to clear a path through the thick woods and vegetation which existed along the boundary between their land. The defendant directed the bulldozer operator to drive the bulldozer behind him and to his left as he walked from the north to the south ahead of the bulldozer along what he thought was the boundary between their property.
After the bulldozer had traveled at least 205 feet, clearing trees and shrubbery along the way, the defendant realized he had strayed 25 to 30 feet onto the plaintiffs' property. The defendant then instructed the bulldozer operator to leave the plaintiffs' property.
Apparently undaunted by his misdirection of the bulldozer, the defendant then used a chain saw in an attempt to clear a path for the proposed fence. Despite using an Army compass, the defendant again strayed onto the plaintiffs' property, cutting down all or portions of up to 30 additional trees.
Sometime later, the plaintiffs discovered the damage which defendant had done on their land. James Keitges testified that in the damaged area "all the trees had either been knocked down, were lying on their sides, or they were uprooted leaning over halfway with the roots exposed or there were trees that had been cut down and piled in big piles with the soil." The damage covered an area at least 450 feet long and 8 to 10 feet wide. Approximately 100 trees had been damaged or destroyed.
James Keitges then contacted an Earl May Garden Center in an effort to determine whether the damage could be repaired and, if so, at what cost. Nurseryman Carl Johnson examined the damage to the plaintiffs' property and determined that it would be possible to return the damaged area to substantially the same condition as it existed prior to defendant's trespass. Johnson prepared a detailed estimate of the cost of restoring the plaintiffs' property to its prior condition, specifically itemizing the replacement trees by size and cost, and including the cost of labor and materials for replanting. However, the trial court refused to allow Johnson to testify regarding the cost or feasibility of restoring the plaintiffs' land. Plaintiffs' offer of proof indicated that if Johnson had been allowed to testify, he would have testified that in April 1985 the reasonable cost of such restoration was $12,219.07 and that price increases had raised that amount to $13,842.80 at the time of trial.
At the trial, James Keitges testified that in his opinion, the value of the 10.01-acre tract was approximately $55,000 immediately before the damage occurred and approximately $25,000 immediately after the damage occurred.
The defendant's expert witness, Russell Nelson, testified that he had appraised the plaintiffs' property and had estimated its fair market value at $21,500. Nelson testified that in his opinion, the destruction of the trees had no effect upon the market value of the plaintiffs' property, but he was unable to support this opinion with market data relating to properties which had suffered similar damage.
The plaintiffs requested their expert witness Richard See to determine the amount of any loss in value occurring to their property as a result of the damage done by the defendant. See testified that such a determination is usually made by conducting a "before and after analysis." In attempting to conduct this analysis using a sales comparison approach, he found no properties that had suffered a similar loss and was unable to measure the market reaction to the destruction of trees using this approach. See testified that by using the "cost approach," he was able to obtain sufficient data to reach an opinion concerning the loss in value to the plaintiffs' property which resulted from the damage to the trees. However, the trial court did not allow See to testify as to that opinion. The plaintiffs' offer of proof indicated that See would have testified that using the cost approach, he would rely on a contractor's estimate and, in this case, the Earl May estimate prepared by Johnson.
The plaintiffs first contend that the trial court erred in not allowing them to present evidence relating to the cost of restoring trees and vegetation which the defendant damaged or destroyed and in improperly instructing the jury on the issue of damages. As noted previously, the district court refused to allow the plaintiffs to introduce evidence of prospective restoration costs. The district court also refused the plaintiffs' proposed jury instruction which would have instructed the jury that the plaintiffs were "entitled to recover the reasonable cost of repairing the (property) to substantially the same condition it was in before it was damaged." Instead, the trial court instructed the jury with respect to the issue of damages as follows:
The Defendant has admitted and the Court has determined as a matter of law, that the Defendant trespassed upon the land of the Plaintiff. The Court has also determined that the Plaintiff sustained damages as a result of that trespass. Therefore, you must...
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