Thatcher v. Lane Const. Co.

• Decision Date: 13 January 1970
• Citation: 21 Ohio App.2d 41,254 N.E.2d 703,50 O.O.2d 95
• Parties: , 50 O.O.2d 95 THATCHER et al., Appellees, v. LANE CONSTRUCTION CO., et al., Appellants.
• Court: Ohio Court of Appeals

Page 41

21 Ohio App.2d 41

254 N.E.2d 703, 50 O.O.2d 95

THATCHER et al., Appellees, v. LANE CONSTRUCTION CO., et al., Appellants.

Court of Appeals of Ohio, Tenth District, Franklin County.

Jan. 13, 1970.

Syllabus by the Court

1. The general rule that the measure of damages for injury to real estate shall not exceed the difference in the market value of the entire tract immediately before and immediately after the injury is not an arbitrary or exact formula to be applied in every case without regard to whether its application would compensate the injured party fully for losses which are the proximate result of the wrongdoer's conduct.

2. Where the presence of trees is essential to the planned use of property for a homesite in accordance with the taste and wishes of its owner, where not unreasonable, and where such trees are destroyed by trespassers, the owner may be awarded as damages the fair cost of restoring his land to a reasonable approximation of its former condition, if such restoration be practical, without necessary limitation to diminution in market value of such land.

Tyack & Scott and Michael F. Colley, Columbus, for appellees.

William N. Postlewaite, Columbus, for appellants.

LEACH, Judge.

This is an appeal by defendants, appellants herein, from a judgment of the Franklin County Municipal Court awarding damages to plaintiffs, appellees herein, in the sum of $1,750.

Plaintiffs purchased a lot from defendants in a subdivision in northwest Franklin County in early 1964. Immediately to the south of this lot was a reserve established by the defendants for the use of all lot owners of the subdivision.

Sometime after plaintiff's purchase and while defendants were removing trees and underbrush from the reserve lot, the operator of the bulldozer inadvertently came onto the lot belonging to the plaintiffs and removed trees and underbrush.

At trial, it was admitted that defendants were responsible to the plaintiffs for the damage done to their lot, the single issue being the extent and the measure of damages.

The case was tried to the court without a jury. The court rendered separate findings of fact and conclusions of law. No bill of exceptions has been filed herein. Thus, we are limited to the question of whether a judgment in such amount is supported by the findings of fact of the trial court.

The court found that practically all the trees and underbrush had been cleared in an area on the south side of plaintiff's lot approximately 100 feet long by 30 feet wide; that this area had included five trees with diameters of four to five inches with a 'replacement value' of $170 per tree, and fifteen trees two inches in diameter or less with a 'reasonable cost of replacement' of $60 per tree; and that the court was 'unable to determine the value of the underbrush destroyed.' (The judgment of $1,750 apparently was arrived at by multiplying $170 x 5 ($850) and $60 x 15 ($900), and adding the products of such multiplication.)

The court further found the 'fair market value' of the lot to have been $10,000 immediately prior to the trespass and $9,000 immediately after the trespass.

Citing the cases of Cleveland Electric Illuminating Co. v. Merryweather (1928), 6 Ohio Law Abst. 528; Klein v. Garrison (1951), 91 Ohio App. 418, 108 N.E.2d 381; and Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, 140 N.E. 356, as their principal authorities defendants assert (and asserted in the trial court) that this case involves injury to real property and that the measure of damages for injury to real property cannot exceed the 'difference in the market value before and after the injury.'

While recognizing this to be the 'general rule in Ohio,' the trial court concluded that the rule set out in Huber v. Serpico (1962), 71 N.J.Super. 329, 176 A.2d 805, should be 'an exception' to such general rule. This rule, as quoted with approval by the trial court, is as follows:

'Landowner, whose shade or ornamental trees or shrubbery having peculiar value to him have been destroyed by trespasser, should be allowed as damages fair cost of restoring his land to reasonable approximation of its former condition, without necessary limitation to diminution in market value of land.'

The court found as a matter of fact '* * * that the primary reason why the plaintiffs purchased the lot in question was that it was wooded and that for aesthetic reasons and in the interest of privacy they desired to have the trees on the south side of the lot form a 'shield' to separate their proposed house from the so-called 'reserve lot' of the developer.'

In rejecting the evidence of plaintiffs' expert that '5 large shade trees 6 -10 in caliper,' '15 medium shade trees 3 -5 in caliper' and '23 small shade trees 2 -3 in caliper' were 'necessary to re-establish the cover,' the court, although not specifically so stating, necessarily concluded that 5 trees with a diameter of 4 to 5 inches and 15 trees 2 inches in diameter or less were necessary to re-establish such 'shield.'

While the restoration of land to a reasonable approximation of its former condition, where the primary purpose of such restoration is to provide a 'shield' for a homesite, ordinarily would not seem to require the replacing of identical sized trees in identical numbers to those which existed before, in the absence of a bill of exceptions herein the issue of such necessity is not before this court.

For the purposes of this appeal, the basic issue is whether the rule as to damages to real property, mentioned in Cleveland Electric Illuminating Co. v. Merryweather, Klein v. Garrison, and Ohio Collieries Co. v. Cocke, necessarily is controlling herein, or whether there are or should be exceptions thereto.

Passing for the moment the question of the binding effect, if any, of these Ohio cases on the issue presented herein, we conclude from a review of many authorities outside Ohio that the rule, as stated by the New Jersey court in Huber, constitutes a proper application of the common-law rule of damages to real property, as a well recognized exception to the general rule limiting recovery to the difference in market value.

We further conclude that the 'general rule' as to damages is not, and was not intended to be, a 'formulaic criterion that must be followed in every instance.' Annotation-Measure of damages for destruction of or injury to trees and shrubbery. 69 A.L.R.2d 1335, 1366.

As stated at page 1340 of that same annotation:

'It is a fundamental principle of the law of damages that an injured party should recover an amount sufficient to compensate him fully for losses which are the result of a wrongdoer's conduct. Thus, while the courts have formulated measures of damage to be applied when trees are injured or destroyed, the opinions indicate that the rules are not to be applied in an arbitrary manner but are to be used as flexible guides in determining the true amount of the loss.'

That same basic thought is contained in a prior annotation on the same subject (161 A.L.R. 549, 551), where, after discussing the applicability of various rules of damages for destruction of or injury to trees and shrubbery, it is stated:

'* * * And it may be likewise observed of these cases that few of them, if any, evince an intention to view the rule as an arbitrary one or an exact formula, exclusively applicable or in itself appropriate to the solution of all problems in which injury to the land constitutes the chief difficulty, but rather they show that regard should be had in each case to all the circumstances and the separate items of damage proved, subject to the limitation that no duplications for particular items should be allowed.'

No attempt will be made herein to review the many cases containing language which would support the Huber principle. E. g. Koch v. Sackman-Phillips Inv. Co. (1894), 9 Wash. 405, 37 P. 703; Gilman v. Brown (1902), 115 Wis. 1, 91 N.W. 227; Lucas v. Morrison (Texas Civ.App., 1956), 286 S.W.2d 190; Schankin v. Buskirk (1958), 354 Mich. 490, 93 N.W.2d 293; Brereton v. Dixon (1967), 20 Utah 2d 64, 433 P.2d 3; Samson Construction Co. v. Brusowankin (1958), 218 Md. 458, 147 A.2d 430, 69 A.L.R.2d 1326.

With reference to this subject matter, Restatement of the Law of Torts, Section 929 (page 661) states:

'b. Restoration. Even in the absence of value arising from personal use, the reasonable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery. Thus where a ditch is dug without right upon the land of another, the other normally is entitled to damages measured by the expense of filling the ditch, if he wishes it filled. If, however, the cost of replacing the land in its original condition is...