dissenting.
I must dissent from a result of simply reversing this case. The majority opinion relies on Belle Fourche Pipeline Co. v. Elmore Livestock Co., Wyo., 669 P.2d 505 (1983), in which this court in a somewhat similarly awkward situation remanded the case for a new trial. This court very appropriately remarked, “Appellees are entitled to something.” Belle Fourche Pipeline Co. v. Elmore Livestock Co., 669 P.2d at 514. I believe that to be the situation in this case. Many years ago this court noted an exception to the general rule with respect to damages to real property to the effect that:
“It is true that where the damage to real property is of a temporary character, or where it can be repaired at a small expense, the cost of the repair has often been held to be the measure of damages.”
Town Council of Town of Hudson v. Ladd, 37 Wyo. 419, 426, 263 P. 703 (1928). The court has not receded from that dictum.
In this instance, I agree that it was not appropriate for the district court to attempt to apportion the $800 per mile trespass fee by awarding $400 a mile to Ludvik. The amount paid for the trespass fee really had no relation to Ludvik’s damages. On the other hand there was testimony before the trial court, concededly provided by the appellant, that the permanently damaged area could be repaired at a cost of $600. In the language of the quoted exception and in consideration of prices in today’s world that cost of repair seems a relatively small expense. The district judge enhanced that figure by $400, but his actions in so doing would be acceptable in accordance with Phelps v. Woodward Construction Co., 66 Wyo. 33, 204 P.2d 179 (1949). I would not, therefore, reverse this judgment, nor would I remand the case for a new trial on the issue of damages. I would modify the judgment by reducing it to the amount of $1,000 and remand the case for entry of judgment in that amount.