Schankin v. Buskirk

• Decision Date: 02 December 1958
• Docket Number: A,No. 46,46
• Citation: 354 Mich. 490,93 N.W.2d 293
• Parties: Joseph F. SCHANKIN and Marion F. Schankin, Plaintiffs-Appellees, v. Clarence E. BUSKIRK, individually and d/b/a Buskirk Lumber Company, Defendant-Appellant, and Alger Homes, a Michigan corporation, and Clayton M. Gouine, Defendants. pril Term.
• Court: Michigan Supreme Court

Page 293

93 N.W.2d 293

354 Mich. 490

Joseph F. SCHANKIN and Marion F. Schankin, Plaintiffs-Appellees, v. Clarence E. BUSKIRK, individually and d/b/a Buskirk Lumber Company, Defendant-Appellant and Alger Homes, a Michigan corporation, and Clayton M. Gouine Defendants.

No. 46, April Term.

Supreme Court of Michigan.

Dec. 2, 1958.

John von Batchelder, Detroit, for defendant and appellant, Clarence E. Buskirk, Ind. and d/b/a Buskirk Lumber Co.

Arthur E. Sommers and Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, (Donald E. Miller, Detroit, of counsel), for plaintiffs and appellees.

Before the Entire Bench.

SMITH, Justice.

Plaintiffs seek treble damages under the statute, ¹ for a trespass in the course of which several trees on their land were cut down. At the time that plaintiffs, a young man and his wife, purchased the parcel of land in question, there were few houses in the neighborhood, the street that ran by had not yet been paved, and their land and the land adjoining, as well, were thickly wooded. They intended to build there and they had chosen the parcel, which is part of a suburban land development near Detroit, for the beauty of its large trees. They pictured these as surrounding their future home.

Within a year, building on a large scale started in the neighborhood. (Negotiations to purchase, May, 1952, delivery of deed, August, 1952, harm occurred, June 13, 1953.) The owner of the land adjoining plaintiff', defendant Alger Homes, Inc., engaged the services of defendant Gouine, whose work was to clear land of trees and shrubs, and to prepare building sites. Trees to be cut were indicated by an agent of Alger Homes, Inc., but the work was not supervised. In turn, Gouine arranged with defendant Buskirk, the owner of a sawmill, for the sale of timber. Some trees were to be cut down by Buskirk's employees according to the arrangement. While it is admitted that they cut down 6 large trees on plaintiffs' land, the circumstances under which they did so are disputed.

Gouine and his employees testified that stakes had been placed to mark the lot lines, that brush had been cleared from the land owned by Alger Homes, Inc., up to the line separating its lots from plaintiffs', that this line could be seen without difficulty, that it had been pointed out to Buskirk's employees when they arrived in the early morning, and that they had been told to keep off the land beyond it. Gouine further testified that, in the middle of the day, he noticed them cutting just over the line and cautioned them again, that he left, and that, when he returned in the evening to pay his men, one of them told him that Buskirk's employees had gone ahead and taken all the large trees from plaintiffs' land. This his employees confirmed, adding that one of Buskirk's men had said something jokingly at the time they did the cutting about 'free logs, extra money.' Buskirk's employees testified that they had not seen any stakes, except perhaps some at the rear of the lots, that these had not been pointed out as marking the limits within which they might cut, and that the cutting of trees on plaintiffs' land was done in the morning, in Gouine's presence and under his direction.

The trial court, the Court of Common Pleas for the City of Detroit, directed a verdict of no cause of action in favor of Alger Homes, Inc., but left to the jury the question of the liability of the other 2 defendants. The jury returned a verdict of no cause of action against Gouine, and a verdict of guilty against Buskirk. In answer to a series of special questions, the jury said that they found that the trees on plaintiffs' land had not been cut down in Gouine's presence, nor under his direction, that Buskirk's employees had been guilty of 'wilfulness, wantonness, or evil design' in cutting the trees, and that the value of plaintiffs' land before the trespass had been $3,700 and after the trespass $2,800. A motion by Buskirk for judgment non obstante veredicto, or, in the alternative, for a new trial, was denied and judgment was entered against him for treble damages, in the amount of $2,700. The circuit court for Wayne county affirmed. Buskirk takes this appeal.

In urging that a finding of wilful trespass is 'contrary to the great weight of the evidence,' reliance is placed on a statement made by Gouine after this suit had been started, but before Gouine had been served with process. Buskirk, mentioning that he was involved in a suit, asked Gouine if his (Buskirk's) employees had cut any timber that Gouine had not directed them to cut. Gouine replied that they 'were a good bunch of boys and they didn't cut anything that I didn't say.' We cannot say that the jury was not justified in accepting Gouine's explanation of this statement, namely, that it referred to some other work. Viewing the testimony in its entirety, we cannot say that the verdict was so against the 'overwhelming weight of evidence,' Schneider v. Pomerville, 348 Mich. 49, 81 N.W.2d 405, 408, that it must be set aside upon such ground.

As to the damages involved, it is settled that the damages that are to be trebled under the statute represent not merely the value of the timber cut but damages to the freehold as well. Miller v. Wykoff, 346 Mich. 24, 77 N.W.2d 264. Generally speaking, damages in trespass to land are measured by the difference between the value of the land before the harm and the value after the harm, but there is no fixed, inflexible rule for determining, with mathematical certainty, what sum shall compensate for the invasion of the interests of the owner. Whatever approach is most appropriate to compensate him for his loss in the particular case should be adopted. Allison v. Chandler, 11 Mich. 542; Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12; Basin Oil Company v. Baash-Ross Tool Company, 125 Cal.App.2d 578, 271 P.2d 122. Thus, the damages awarded in Miller v. Wykoff, supra, reflected, in part, the value of the timber taken and, in part, the cost of restoring the land to a condition of usefulness--by filling up stump holes and cleaning up the toppings and other debris left behind by the trespassers. See, also, Burtraw v. Clark, 103 Mich. 383, 61 N.W. 552; Restatement, Torts, § 929.

On the matter of damages, it is urged to us that the destruction of the trees did not lessen the market value of the land, and may, in truth, have increased it. Further, that the evidence supports an award of damages only for stumpage, the value of the wood taken, which is estimated at $25.50. The president of defendant Alger Homes, Inc., testified that he had purchased 30 lots in the neighborhood of the local school district at auction, within a month of the cutting, and at a price of $1,155 per lot. Plaintiffs owned a corner lot and the lot adjacent, an area approximately twice the size of one of these lots. The president further testified that in his opinion plaintiffs' property was worth, at the time of the cutting, approximately what they had paid, $1,800, but $100 more with the trees cleared away, and that it was less desirable than the other lots. We need not summarize the testimony of other witnesses so minded. They agreed, in substance, that the...