(concurring and dissenting):
I join the majority opinion in affirming the judgment as to liability, but dissent from its treatment of the damage question. The measure of damages for permanent injury to land and damage to trees was recently treated by the Utah Court of Appeals in Ault v. Dubois, 739 P.2d 1117 (Utah Ct.App.1987):
Generally, the measure of damages for permanent injury to land is the difference in the market value of the land immediately before and immediately after the injury, but if the land may be restored to its original condition, the cost of restoration may be used as the measure of damages if it does not exceed the diminution in the market value.
Id. at 1120 (citations omitted). The opinion correctly notes that the above standard is not a rigid one and that “even when diminution in value is clearly the appropriate measure of damages, evidence as to repair costs is admissible for the purpose of helping [the fact finder] determine the loss of value.” Id. at 1121 (citations omitted).
In Brereton v. Dixon, 20 Utah 2d 64, 433 P.2d 3 (1967), this Court endorsed a flexible rule particularly applicable for damages to land associated with destruction of trees on the realty.
When property has been damaged or destroyed by a wrongful act, the desired objective is to ascertain as accurately as possible the amount of money that will fairly and adequately compensate the owner for his loss.
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Because of the fact that any attempt at unvarying uniformity in applying either [the diminution in value rule or the separate value rule], a third rule, which we believe to be the better considered and more practical one, has been applied. It gives the injured party the benefit of whichever of the two rules will best serve the objective hereinabove stated of giving him reasonable and adequate compensation for his actual loss as related to his use of his property.... If he wants to maintain a fruit orchard, a wood lot, or even a primitive area, though his property may be more valuable if turned to an industrial or residential purpose, that should be his prerogative; and if it is wrongfully destroyed or damaged, the wrongdoer should pay for the actual damage he caused.
Id. at 66, 67-68, 433 P.2d at 5-6.
A few years later, in Pehrson v. Saderup, 28 Utah 2d 77, 498 P.2d 648 (1972), this Court quoted with approval the following language from Thatcher v. Lane Construction Co., 21 Ohio App.2d 41, 254 N.E. 2d 703 (1970):
*1248Where the presence of trees is essential to the planned use of property for a homesite in accordance with the taste and wishes of its owner, where not unreasonable and where such trees are destroyed by trespassers, the owner may be awarded as damages the fair cost of restoring his land to a reasonable approximation of its former condition, if such restoration be practical, without necessary limitation to diminution in market value of such land.
28 Utah 2d at 79, 498 P.2d at 650 (citing Thatcher, 21 Ohio App.2d at 49, 254 N.E.2d at 708). The Pehrson opinion goes on to state what I believe to be a sound and just rule: “In a determination of the appropriate measure of damages in this area, the cardinal principles are flexibility of approach and full compensation to the owner, within the overall limitation of reasonableness.” Pehrson, 28 Utah 2d at 79, 498 P.2d at 650.
The trial court in this case found as fact that defendant Thorsen “willfully and intentionally ... [made] a massive, senseless, purposeless ditch across [plaintiffs’] premises.” A review of the numerous photographs in the record explains the finding that the trial judge, after personal inspection of the land, was “shocked at the damage which was done to the premises ... and [had] grave doubts whether or not the property ... can ever be used for the purposes for which they [sic] were bought by the Plaintiffs.” The evidence showed that more than two hundred mature pine trees and one hundred and seventy cedars over eight feet tall were uprooted by defendant. Plaintiffs’ experts testified that replacing them would cost approximately $275 per tree and that the trees on the lots were extremely important to the development and sale of the lots. Other testimony established that many lots would not even be saleable without grading and reseeding at a cost of $80,000 without replacing any trees. In short, although disputed, there was considerable evidence upon which the trial court could rely in awarding $54,000. In view of the malice that motivated this destruction, I am not in the least troubled by the flexible approach the trial judge took in applying the diminution in value rule. In fact, I think he would have been justified in using the restoration costs, within some reasonable limit, as a measure of damages. Fifty-four thousand dollars, as compared to the cost of replacing the destroyed trees (more than $100,000) seems very reasonable to me. The majority’s approach is, I believe, contrary to our case law supporting the principle of full compensation within the overall limitation of reasonableness.
Finally, I note that Utah Code Ann. § 78-38-3 (1987), upon which plaintiffs apparently did not rely, provides for the trebling of civil damages against “any person who cuts down ... or otherwise injures any tree ... on the land of another person ... without lawful authority.”