Damages

Damages are awarded in an action for trespass to compensate an owner for injury caused due to a trespass.  They are awarded to a person who proves that a trespass to his/her property has been committed and thereby actual damage have occurred.  Trespass is an intrusion on a property of another person and it is presumed that damage has occurred from such intrusion.

Damages available on an action for trespass may include:

  • diminution of market value,
  • costs of restoration,
  • loss of use of the property[i],
  • physical injury to the person or to the land ,
  • emotional distress without a physical injury to the person or to the land,and
  • discomfort and annoyance to a property owner as a possessor of  the property[ii].

Damages are assessed not on the basis of any specific rule.  Generally, it is the discretion of a court or a jury to decide the amount of damages.  It will be assessed based on competent evidence and is presumed to be correct.  An assessment will be set aside only if it is found unreasonable or not proportionate to the injury caused.

Some jurisdictions may not grant damages even if it is found that a trespass has happened.  It is done so when a trespass is not deliberate and where no damages or loss has happened[iii].  Nominal damages need not be awarded where no actual loss has occurred. A property owner may be required or not required to mitigate or lessen the gravity of damages occurring to his/her property.

Generally, a person will be liable for damages on a trespass even if it was committed by mistake of law or mistake of fact.  But in common law, if a trespass was committed in good faith by one who truly believed that s/he is authorized to do that act may be excused from liability[iv].  Certain statutes award single damages where a trespasser had probable cause or an honest and reasonable belief that the land on which the trespass was committed was his/her own.

Measure of damages varies according to the injury or harm caused due to a trespass.  No fixed rule is adopted in the measurement of damages.  A person may be compensated appropriately for the loss sustained pursuant to a trespass.  In dispossession of property from an owner, compensatory damages may be awarded as it is a violation of a property right[v].  Damages for dispossession of property by trespass are not limited to proof of actual pecuniary loss[vi].

Also, the nature of injury, whether it is permanent or temporary will be looked into while measuring damages.  In case of permanent injury, if there is a total destruction of property total value will be awarded.  Decrease in the market value of the property will be considered in case of partial destruction[vii].  Both past and future damages may be recovered in permanent injury cases.  Measure of damages in a temporary injury is the amount required for restoration or repair of the property.  Nominal damages also may be awarded in a temporary injury trespass.

A plaintiff may be permitted to elect between the difference in value caused by the damage or the reasonable cost of repair or restoration.  A plaintiff can also elect to collect for one or more elements of damages caused pursuant to the trespass[viii].

The measure of damages for injury to real property is the amount which will compensate all the harm caused by the trespass[ix].  It may be considered in relation to the effect of an injury on the whole parcel of land.  Diminution in value is the difference between the fair market value of the property before and after the trespass[x].  Where there is a total diminution in value, a landowner may not recover in excess of the previous original value of the land.  Where a trespasser has made improvements on the land, the real value charged should be for the land before improvement.

In case of a trespass that dispossesses an owner, damages would be an amount that would compensate for its use and occupation, that is, the fair rental value.  The proper measure of damages in such a trespass action would be made considering the rental value of the area actually occupied by the trespasser.

Damages with regard to trespass to property involving destruction of trees may be in conformity with the loss of value of the real property or the value of the trees at the time of trespass[xi].  Whereas, damages for the wrongful destruction of ornamental or shade trees will be only basic value of the trees removed as they do not diminish the value of the land.

Usually, where an injury to a land resulting from a trespass is temporary and subject to restoration, damages awarded would be the cost of restoring the property to its prior condition.  But, damages for restoration will be awarded only where replacement or restoration costs are practical and reasonable[xii].  In the case of property which had a unique value of its own, damages will be awarded only if it is shown by evidence that such property had any special value to the plaintiff.

The measure for injury to personal property resulting from trespass is same as for a trespass to real property.  Damages awarded for a loss of personal property caused by a trespass will be actual damages suffered by reason of the impairment of the property or the loss of its use[xiii].  It may be the difference between fair market value of the property before the injury and after the injury[xiv].  Cost of repair may be considered while determining the proper measure of damages for trespass to personal property[xv].

However, the loss of time of an owner of a personal property by reason of trespass will not be considered generally except in extraordinary circumstances where a plaintiff is unable to perform his/her work or a contract without the use of that property.

Different types of damages are granted in an action for trespass.  They are actual damages, nominal damages, consequential damages, punitive or exemplary damages, and multiple damages. Actual damages are compensatory damages for the actual damage that occurred.  When a possessor of a property is not able to prove actual damages occurred, s/he is awarded nominal damages[xvi].  Consequential damages are damages awarded for all injuries resulting from a trespass.  A person is responsible for all the consequences arising from his/her trespass on to another’s property.  Damages for physical, mental, and emotional injury may be recovered by a person in an action to trespass as consequential damages[xvii].

Punitive damages in an action for trespass must be shown by clear and convincing proof.  A landowner may be entitled to punitive damages, in the case of intentional trespass, as the cost of restoration of the damage occurred to a property[xviii].  Attorneys fees may be included as part of an award of punitive damages[xix].  Multiple damages are awarded under certain circumstances in some jurisdictions by state statutes.  Multiple damages are provided as deterrence from committing the offense in future.

Proof of damage is necessary to recover damages in an action for trespass.  It need not be proved in an exact or precise manner[xx], but an award for damages must not be based on mere assumption or guesswork.  An award of damages for a trespass to real property must be supported by evidence of the value of property damaged or expenses incurred.  Anyhow, a trespasser cannot escape liability even if there is uncertainty as to the extent of the value of damages.  A property owner may or may not testify to his/her opinion of the market value of the property prior to and after the trespass.

An award of damages based on a probable determination of the quantity of damage supported by evidence will be considered proper.  A trial court may deny a trespasser’s motion for directed verdict in an action for intentional trespass where a plaintiff has adduced sufficient evidence for willful and wanton misconduct in order to submit the issue of punitive damages[xxi].

[i] Case Leasing & Rental, Inc. v. Ohio Dep’t of Natural Res., 2009 Ohio 6573 (Ohio Ct. App., Franklin County Dec. 15, 2009).

[ii] Kornoff v. Kingsburg Cotton Oil Co., 45 Cal. 2d 265 (Cal. 1955).

[iii] Ruiz v. Forman, 514 S.W.2d 817 (Tex. Civ. App. El Paso 1974).

[iv] Hayes v. State, 13 Ga. App. 647 (Ga. Ct. App. 1913).

[v] Booth v. Madison River Communs., Inc., 851 So. 2d 1185 (La.App. 1 Cir. June 27, 2003).

[vi] Britt Builders, Inc. v. Brister, 618 So. 2d 899 (La.App. 1 Cir. 1993).

[vii] Alabama Power Co. v. Thompson, 250 Ala. 7 (Ala. 1947).

[viii] Hartley v. Schwab, 564 S.W.2d 829 (Tex. Civ. App. Amarillo 1978).

[ix] Klein v. Garrison, 91 Ohio App. 418 (Ohio Ct. App., Montgomery County 1951).

[x] Ridgway v. TTnT Dev. Corp., 126 S.W.3d 807 (Mo. Ct. App. 2004).

[xi] Kostal v. Davis, 66 Va. Cir. 489 (Va. Cir. Ct. 2004).

[xii] “L” Invs. v. Lynch, 212 Neb. 319 (Neb. 1982).

[xiii] Williams-Bowman Rubber Co. v. Industrial Maintenance, Welding & Machining Co., 677 F. Supp. 539 (N.D. Ill. 1987).

[xiv] Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595 (Ind. Ct. App. 1993).

[xv] McNeill v. Burlington Res. Oil & Gas Co., 143 N.M. 740 (N.M. 2008).

[xvi] Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007).

[xvii] Turner v. Southern Excavation, Inc., 322 So. 2d 326 (La.App. 2 Cir. 1975).

[xviii] Whittington v. Grand Valley Lakes, Inc., 547 S.W.2d 241 (Tenn. 1977).

[xix] R & S Dev., Inc. v. Wilson, 534 So. 2d 1008 (Miss. 1988).

[xx] Wright v. Wilcox, 262 Ga. App. 659 (Ga. Ct. App. 2003).

[xxi] Rodrian v. Seiber, 194 Ill. App. 3d 504 (Ill. App. Ct. 5th Dist. 1990).


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