Weisswasser v. Chernick

¶1On Remand

¶2Defendants were found to have intentionally trespassed on plaintiffs’ land and were assessed treble damages amounting to $64,800, pursuant to MCLA 600.2919; MSA 27A.2919. On appeal, this Court reversed,1 finding that plaintiffs had not sustained their burden of proof by not showing that all the tenants-in-common had not, in fact, consented to defendants’ entry, citing Padman v Rhodes, 126 Mich 434; 85 NW 1130 (1901).

¶3That decision was reversed on May 2, 1977, by the Supreme Court in a per curiam opinion2 holding that testimony by one of the tenants that he did not grant consent coupled with the circumstantial evidence of nonconsent was sufficient to satisfy plaintiffs’ burden of proof. This case was thereupon remanded to us for consideration of the remaining issues raised by defendants on appeal.

¶4Because the Supreme Court has definitively answered all questions as to defendants’ liability, the only remaining issue we need discuss is whether the trial court erred in its instructions to the jury as to the standard to be used for computing damages. The trial court instructed the jury that it could consider replacement costs in determining damages.

¶5Under MCLA 600.2919; MSA 27A.2919 (and its predecessors), damages are measured by the loss of value of the freehold interests of the owner as a *683result of the removal of any enumerated materials. Achey v Hull, 7 Mich 423, 430 (1859), Miller v Wykoff, 346 Mich 24, 26-27; 77 NW2d 264 (1956), Schankin v Buskirk, 354 Mich 490, 494; 93 NW2d 293 (1958). Defendants contend that this standard precludes replacement costs as a measure of damages. However, in Schankin v Buskirk, supra, at 494, the Supreme Court was careful to point out that:

"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.”

¶6Furthermore, in Kelly v Fine, 354 Mich 384, 388; 92 NW2d 511 (1958), and in Schankin v Buskirk, supra, at 496, the Supreme Court held that replacement and restoration costs are proper elements for the jury to consider in assessing damages.

¶7Therefore, since the trial court did instruct the jury that they must "determine the amount of money which would reasonably, fairly and adequately compensate plaintiffs for the injury to their property”, the instruction that they could consider replacement costs in making that determination does not constitute reversible error.

¶8We have carefully reviewed all other allegations of error and find none to be persuasive.

¶9Affirmed.