Kelly v. Fine
92 N.W.2d 511, 1958 Mich. LEXIS 307, 354 Mich. 384 (1958)
Rule of Law:
A trespass is considered "willful and wanton" for the purpose of statutory treble damages if it is intentional and committed with knowledge that it is without right, even without a showing of malice or desire to injure, and the cost of restoration can be a proper measure of damages.
Facts:
- A construction company developed a new housing subdivision that had been accepted for Federal Housing Administration (FHA) financing, which included a "block" grading plan.
- Plaintiffs purchased a lot from the company, which also contracted to construct a house on it for $13,600 for the house and lot.
- Plaintiffs did not finance through the FHA and were unaware of the company's commitment to the FHA regarding the grading plan.
- After the house was completed, plaintiffs moved in and paid the full price, except for $350 which was held in escrow to guarantee the company's completion of outside work, including grading the lawn.
- Defendant, the manager of the construction company, caused earth-moving machinery to enter upon plaintiffs' property.
- Defendant removed approximately 544 cubic yards of earth from plaintiffs' lot and placed it on other lots in the subdivision.
- Plaintiffs objected and protested to defendant when the operation began and again before it was completed, but the removal continued despite their objections.
Procedural Posture:
- Plaintiffs filed suit in a trial court for damages for the removal of topsoil from their lot.
- The trial court instructed the jury that they might return one of three verdicts: for plaintiffs based on willful and wanton trespass, for plaintiffs based on casual and involuntary trespass, or no cause for action for defendant.
- The jury returned a verdict for plaintiffs in the amount of $2,000, expressly finding that the defendant had been guilty of willful and wanton trespass.
- Applying the treble damages provisions of CL 1948, § 692.451, the trial court entered judgment for plaintiffs for $6,000 plus costs.
- Defendant appealed this judgment to the Michigan Supreme Court.
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Issue:
Does a defendant's intentional removal of soil from a plaintiff's property, despite protests and knowledge that the action is without right, constitute a "willful and wanton trespass" warranting treble damages under CL 1948, § 692.451, and can the cost of restoring the property be used as a measure of damages?
Opinions:
Majority - Dethmers, C. J.
Yes, a defendant's intentional removal of soil from a plaintiff's property, despite protests and knowledge that the action is without right, constitutes a "willful and wanton trespass" warranting treble damages, and the cost of restoring the property can be a proper measure of damages. The court affirmed the jury's finding of "willful and wanton trespass" because there was ample proof that the defendant, despite his company's FHA agreement (which plaintiffs were unaware of and not bound by), knew or should have known he had no right to remove soil from plaintiffs' paid-for and owned lot. The defendant proceeded with the soil removal over plaintiffs' protests. The court clarified that previous cases (e.g., Allison v. Chandler, Russell v. Myers) holding that good faith and honest belief of right prevented punitive damages do not support the position that malice or a desire to injure must be shown; rather, it is sufficient if the trespass was "intentional and with knowledge that it was without right," a standard supported by the statute itself. Thus, the court found that the trial court did not err in applying the treble damages statute. Regarding the measure of damages, the court held that testimony on the cost to restore the lot to its prior condition ($1,250) constituted evidence from which the jury could determine the loss to the freehold, consistent with Miller v. Wykoff. However, the court found the jury's $2,000 verdict was against the great weight of the evidence, as no proof supported a figure higher than $1,250, and therefore required a remittitur.
Analysis:
This case significantly clarifies the standard for applying Michigan's statutory treble damages for trespass, establishing that an intentional act performed with knowledge of lacking a right to do so is sufficient, without requiring proof of malice or ill-will. It protects property owners by deterring deliberate encroachments, ensuring that trespassers cannot escape enhanced liability merely by claiming a lack of malicious intent. Furthermore, the ruling affirms the cost of restoration as a valid measure of damages for property loss, providing a practical remedy for landowners seeking to restore their property to its original condition rather than merely accepting diminished market value, which is particularly relevant for unique or personally valued property.
