Markstrom v. United States Steel Corp.

Per Curiam. This is a trespass action. A jury found that plaintiff property owners were damaged by defendant’s trespass in the amount of $342,000 and that the trespass was deliberate. Pursuant to MCL 600.2919(1); MSA 27A.2919(1), the trial judge trebled the jury’s award and entered a judgment of $1,026,000 in favor of plaintiffs. Defendant appeals as of right. We reverse and remand. Plaintiffs own approximately 200 acres of real estate in rural Mackinac County consisting of a roadfront parcel and a 160-acre parcel. A farmhouse is located on the roadfront parcel. The 160 acres is undeveloped and for the most part uncultivated, comprised of woods which plaintiffs use for hunting. The north and east boundaries of the 160 acres adjoin a limestone quarry owned by defendant. The boundary between plaintiffs’ acreage and defendant’s quarry is marked by a "picket line,” a strip varying in width from four to fifteen feet from which trees have been cleared. In early 1975, defendant began overburden stripping operations, a process of removing mud and commercially unacceptable stone, and started dumping the overburden near the rear, northeast corner of the back forty of plaintiffs’ 160-acre parcel. In 1976 or 1977, plaintiffs discovered that the overburden dump extended onto their land 409 feet along the north boundary and 270 feet along the east boundary. A later survey revealed that defendant had dumped an estimated 44,000 cubic yards of rock onto eight-tenths of an acre of plaintiffs’ land. There was evidence that defendant had — 573 — been aware as early as the summer of 1975 that the overburden had extended onto plaintiffs’ property. Defendant has at all times admitted that it trespassed on plaintiffs’ land and that it is liable for the trespass. Thus, proofs at trial centered on the amount of damages sustained by plaintiffs and whether the trespass was intentional, entitling plaintiffs to treble damages. A real estate expert appraised the value of plaintiffs’ land at $300 per acre and testified that the presence of the overburden on eight-tenths of an acre at the northeast corner of the back forty would not particularly affect the value of plaintiffs’ parcel because "the guy that wants to buy that back forty probably would just use it for recreation, walking through, hunting. . . . [F]or the average deer hunter it wouldn’t make a lot of difference.” A civil engineer testified that it would cost between $5 and $10 per cubic yard to remove the overburden deposited on plaintiffs’ land. A local contractor testified that it would cost approximately $4.50 per yard to remove the rock. The jury’s award of $342,000 in damages suggests that they believed plaintiffs were entitled to the cost of removing the 44,000 cubic yards of overburden and set that cost at $7.75 per cubic yard. Approximately four years before the case went to trial, the parties and their then-attorneys appeared before the court and placed on the record a settlement indicating that defendant had agreed to pay plaintiffs damages of $3,500, conditioned on the recording of a legal description of the encroachment with the register of deeds. This settlement agreement was subsequently set aside on the basis that plaintiffs’ prior attorney had failed to inform them, and failed to place on the record, that the proposed settlement included an agree — 574 — ment that plaintiffs would grant an easement in favor of defendant over the affected area of plaintiffs’ property. On appeal, defendant first contends that the trial court erred in setting aside the settlement agreement and allowing the case to proceed to trial. We disagree. The settlement, as placed on the record, makes no mention of an easement or the transfer to defendant of any type of interest in the affected property. Plaintiffs were uninformed of the requirement that they grant an easement. It is nevertheless apparent that defendant believed it was entitled to an easement under the terms of the agreement. Thus, we must conclude that there was a mutual mistake concerning a material term of the settlement which prevented a meeting of the minds and which justified setting it aside. See generally Siegel v Spinney, 141 Mich App 346; 367 NW2d 860 (1985); Scholnick’s Importers-Clothiers, Inc v Lent, 130 Mich App 104; 343 NW2d 249 (1983), lv den 419 Mich 936 (1984). Moreover, we agree with plaintiffs that, even if there had been a meeting of the minds, the failure of prior counsel to join Mary Markstrom as a necessary party under GCR 1963, 205, now MCR 2.205, made the settlement ineffective. Defendant next contends that two improper jury instructions require reversal. We find no merit to defendant’s claim that the trial court failed to adequately instruct the jury on admitted liability. Read as a whole, the instructions clearly informed the jury that, while defendant admitted responsibility for entering plaintiffs’ land, defendant admitted only having committed an inadvertent and mistaken trespass. There was no error. The same may not be said of the court’s instructions on the measure of damages. The court instructed the jury as follows: — 575 — Generally speaking, damages in trespass to land are measured by the difference between the value of the land before and the value of the land after the harm, but there is no fixed, inflexible rule for determining with mathematical certainty what value shall compensate for invasion of the interest of the owner. You may take into account the fact that the trespass in this case is permanent in nature and the Plaintiffs will be permanently deprived of the portion of their property which is the subject of the trespass. The amount of money to be awarded for the trespass cannot be proven in a precise dollar amount. The law leaves such amount up to your sound discretion. In other words, it must be to compensate Plaintiffs for their damages and not to punish the Defendant. The court’s instruction was correct but so incomplete as to require reversal. As the court stated, generally speaking, damages in cases involving trespass to land are measured by the difference between the value of the land before the harm and after the harm, but there is no fixed, inflexible rule for determining with mathematical certainty what sum shall compensate the owner. Schankin v Buskirk, 354 Mich 490, 494; 93 NW2d 293 (1958). However, the trial court seems to have taken this proposition as meaning that it was for the jury to decide whether the proper measure of damages was the diminution in value or the cost of returning the property to its original condition. That is not what Schankin held. Instead, the Schankin Court held that application of the general rule that diminution of value is the proper measure of damages depends on the facts of each particular case. In this regard, the Schankin Court noted that the cost of restoration of property to its original condition may be an appropriate consideration in cases where the property destroyed has a unique — 576 — value of its own. Schankin, supra, p 496. Accord: Governale v Owosso, 59 Mich App 756; 229 NW2d 918 (1975). In this case, there was no evidence that the affected eight-tenths of an acre located at the rear of plaintiffs’ 160 acres of undeveloped land had special value to plaintiffs. Indeed, they did not discover that the overburden had been placed on their property until 1976 or 1977, at least a year after it was first deposited. Consistent with Schankin and Governale, ¡and in light of the factual circumstances of this particular case, the trial court should have instructed the jury that the appropriate measure of damages was the difference in the value of plaintiffs’ land before the trespass and the value of the land after the trespass. Plaintiffs contend that they were entitled to have the jury award damages on the basis of the cost of removal of the overburden from their property. The problem with this contention is that plaintiffs are essentially asking for an award for the cost of "repairing” the affected eight-tenths of an acre. However, it is the settled law of this state that the measure of damages to real property is the cost of repair only if the injury is reparable and the expense of repair is less than the market value of the property; otherwise, the measure of damages is the difference in the value of the property before and after the injury. See Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191; 348 NW2d 311 (1984), and cases cited therein. Thus, while plaintiffs may have been entitled to a jury instruction on the cost of repair as the measure of damages, such an instruction would have to include the caveat that cost of repair may not exceed the market value of the affected eight-tenths of an acre. In this case, — 577 — the jury was not given such a conditional instruction. Plaintiffs also contend that to limit the jury to a determination of the amount by which the property has been diminished in value amounts to approving of a "taking” of their property by defendant. This contention is also flawed. The purpose of a damage award is to make the plaintiff whole. Compensating plaintiffs for the decline in the value of their property accomplishes that purpose. If a "taking” occurred by way of an intentional trespass, that "taking” will be punished by the imposition of statutory treble damages. Further sanctions in the form of additional compensatory damages would merely amount to a windfall to the plaintiff. Instructional error does not require reversal unless it results in a jury verdict inconsistent with substantial justice. Callesen v Grand Trunk W R Co, 175 Mich App 252; 437 NW2d 372 (1989). Instructions are inconsistent with substantial justice, or manifestly unjust, if the instructions incorrectly state the law and the jury’s verdict may have been based on a misconception of the law and the issues due to erroneous instructions. Getman v Mathews, 125 Mich App 245; 335 NW2d 671 (1983). We are convinced that, in this case, the jury instructions on the measure of damages require reversal. Our disposition of the above issue makes it unnecessary to consider defendant’s remaining claim on appeal. Reversed and remanded. We do not retain jurisdiction.