(dissenting):
137 I respectfully dissent from the decision of the majority because I am convinced that the Carters did not establish all of the elements necessary to prevail on a claim of trespass.1 Furthermore, even if the Carters had proved that the Dones were Hable in trespass, I would reverse the award of damages.
L Liability
138 "The essential element of trespass is physical invasion of the land; [t]respass is a possessory action." Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243 (Utah 1998) (alteration in original) (internal quotation marks omitted). As the Restatement of Torts explains, the invasion can be by entering in person or by placing a thing on the land of another:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.
Restatement (Second) of Torts § 158 (1965).
139 The initial trespass here was the placement of the dirt on the Carters' property without their permission. According to the district court's findings of fact, independent contractors put the dirt on the Carters property. Under established Utah precedent, the Dones are not liable for physical harm caused by their independent contractor unless the Dones retained control over the activity that resulted in the harm. See Magana v. Dave Roth Constr., 2009 UT 45, ¶¶ 22-23, 215 P.3d 143. Because the district court found that the Dones did not direct the contractors to place the dirt on the Carters property, I agree with the majority that the Dones cannot be held liable for the initial placement of the dirt under subsection (a).
140 Next, the Dones did not personally enter the Carters' property. Therefore, they are not liable for trespass under subsection (b), which applies to the failure of an individual or individuals to leave property entered without the consent of the possessor or when the possessor's consent expires or is revoked. See Restatement (Second) of Torts § 158 emits. l-m.
T41 However, "'[tlrespass on (and' ... includes not only entries on land resulting directly or indirectly from the actor's act, but also the presence on the land of a thing which it is the actor's duty to remove." Id. ch. 7, topic 1, seope note; see also id. § 158(c) (explaining that a person may be liable in trespass for failing to remove "a thing which he is under a duty to remove"). But in the absence of such a duty, there is no obligation to remove a thing from another person's property. See U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 42, 990 P.2d 945 ("Because we hold that [the defendant] did not have a duty to remove the sign's foundation, it could not be in trespass for refusing to do so."). Where the Dones did not place the dirt themselves, or direct the contractors to dump it on the Carters' property, they were under no duty to remove it. To hold otherwise would impose on them the very liability that the Utah Supreme Court has held does not attach in the absence of *1138retained control. See Magana, 2009 UT 45, ¶¶ 22-23, 215 P.3d 143. Thus, I would conclude that the Dones are not liable under subsection (c) of the Restatement. See Restatement (Second) of Torts § 158 emt. f ("Tort liability is never imposed upon one who has neither done an act nor failed to perform a duty. Therefore, one whose presence on the land is not caused by any act of his own or by a failure on his part to perform a duty is not a trespasser.").
142 Nevertheless, the majority holds that the Dones are liable because they "enter[ed] land," by causing the dirt to remain on the Carters' property. See id. emt. b (defining "enters land" to include the presence of a thing the actor causes to remain on the land). I respectfully disagree. The district court made no findings that the Dones caused the dirt to remain on the Carters' property. There is likewise nothing in the record to support the majority's conclusion that the Dones' improvements somehow trapped the dirt and caused it to remain. See supro T1 16, 32. Rather, the district court found that after the dirt was pushed onto the Carters' property by the trespassers, the Dones relied on the resulting change in topography in making improvements on their own property.2 Thus, the Dones neither dumped the dirt nor caused it to remain; they simply took advantage of the fact that it was there.3 And they did so at their own risk because the Carters could remove it.
{43 Indeed, the Carters previously obtained an injunction that required the contractors to remove a significant quantity of the dirt from the back of the Carters' house. In addition, Dean Anderson, one of the Dones' contractors, had to install a retaining wall at the back of the property to prevent dirt on their property from sloughing onto the Carters' property. While extracting the rest of the trespassing dirt may have resulted in damage to the Dones' improvements or required them to install another retaining wall, I do not agree that the Dones' opportunistic use of the change in contour resulting from the dirt "caused it to remain" on the Carters' property. Indeed, the Carters' decision to seek relief in the form of an injunetion ordering the Dones to remove the rest of the trespassing dirt suggests that they do not believe it is trapped on their property by the Dones' improvements. Thus, I would conclude that the Dones did not trespass against the Carters by somehow causing the dirt placed by the contractors to remain on the Carters' property.
T44 Furthermore, the Carters have already recovered from the actual trespassers for the invasion of their possessory interest in the land. The Utah Supreme Court has long recognized that
[hlaving a single cause of action against more than one tort feasor, an injured party may proceed against the wrongdoers either jointly or severally and he may recover judgment or judgments against one or all, but he can have but one satisfaction of the cause of action. If the cause has been satisfied in full, the injured party can proceed no further. He has recovered all the law permits.
See Dawson v. Board of Educ., 118 Utah 452, 222 P.2d 590, 592 (1950); see also Nelson v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 935 P.2d 512, 514-15 (Utah 1997) (plurality opinion) (citing a prior version of Utah Code section 15-4-8 (current version at Utah Code Ann. § 154-3 (2009))) (noting that where the plaintiff had already settled with a church's volunteer, the "plaintiff [could] not recover a windfall by receiving more than his actual damages" in an action against the church); Western Steel Co. v. Travel Batcher Corp., 663 P.2d 82, 84 (Utah 1983) (citing Dawson v. Board of Educ., 118 Utah 452, 222 P.2d 590 (1950), for the proposition that *1139"[the law is well settled that an obligee is entitled to be paid in full but cannot exact double recovery").
145 The Dones argue that the settling contractors compensated the Carters in full for the trespass; the Carters deny that they have been fully compensated. "Until both sides present evidence on th[e] issue" of whether the plaintiff has been fully satisfied by the prior settlement and the "[factfinder] determines the amount of damages, that question remains open." See Nelson, 935 P.2d at 514. If the amount awarded is greater than what has been paid in settlement, the remaining defendant can be liable "for only the difference between the total damage figure and the amount [the settling defendant] paid pursuant to the agreement with plaintiff." Id. In contrast, if the total damage awarded is less than or equal to the amount already collected, the remaining defendant "will owe nothing [to the plaintiff] regardless of its liability." Id. at 514-15. Where "the cause has been satisfied in full, the injured party can proceed no further. He has recovered all the law permits." Dawson, 222 P.2d at 592 (reversing summary judgment in favor of the plaintiff and remanding for further proceedings).
1 46 Here, the district court never resolved this factual dispute because it did not "know any of the ... details about that settlement, because there was no discovery done about that, which ... clearly could have been done and [the Dones] brought that up on the first day of trial." The majority agrees with that assessment. See swpro 124. While I am also convinced that the Dones should have tried harder to obtain this information, I also note that the Dones made some efforts to obtain it. The contractors and the Carters reached their settlement after the expiration of the discovery period. Although significant time passed between that settlement and the trial against the Dones, the Carters did not pursue their claims for most of that time, acting only after the court sent a Motion to Dismiss for Failure to Prosecute. Not surprisingly, the Dones did nothing to encourage the Carters to pursue their claims against the Dones.
T47 The Dones did attempt to present evidence of those settlement details at trial but were frustrated in their attempts. When counsel for the Dones asked Mr. Carter whether he had "settled [his] claims against Anderson Excavating and Rock Hard Construction," the Carters' attorney objected on the ground that the information was irrelevant. Although the district court allowed a yes or no answer, it later sustained the Carters' objection to further inquiry on this subject. In answer to whether he had reached a compromise with the contractors, Mr. Carter eventually testified that he had settled with them "[tlo some extent," but purported to be uninformed about the details of the settlements. When counsel for the Carters objected to "this entire line of question[ing]," the district court commented that "it doesn't sound like [Mr. Carter] has a whole lot of personal knowledge of this," and sustained the objection. The Dones then attempted to obtain information about the settlement from Mrs. Carter. Counsel for the Carters immediately interrupted, seeking a bench conference to discuss the objection.4 The parties held the ensuing discussion with the district court off the record, and neither attorney asked to have it summarized as part of the recorded proceedings. After that conference, counsel for the Dones narrowly tailored his questions, asking Mrs. Carter, "Other than the amount ... that you settled for, is there anything else that you can recall that was a term or condition of that settlement." While counsel's delicacy in posing the post-bench-conference question to Mrs. Carter suggests an attempt to comply with the district court's instruction, it was the responsibility of the appellants to assure that the record forwarded to this court was complete. See State v. Nielsen, 2011 UT App 211, ¶ 4, 257 P.3d 1103 ("An appellant has the burden to provide an adequate record for review.") (citing Utah R.App. P. l1(e)(2)). Therefore, I agree with the majority that we cannot determine whether the Carters have received a double recovery without the amount of the settlement. The Dones have not presented a *1140sufficient record to prove that the Carters have been made whole.
T 48 Even without those specifics, however, there is no dispute that the Carters received payment of an undisclosed damage amount from Anderson Excavating and Rock Hard, dismissed all claims against them, and then elected not to remove the dirt, Instead, Anderson graded that area of the Carters property, and the Carters installed sprinklers, top soil, and flagstones on it. In my view, the Carters incorporated the trespassing dirt into their land.
{49 Section 158 of the Restatement of Torts cross-references sections 160 and 161 to explain further trespass liability under subsection (c) of section 158, dealing with the failure to remove a thing that the person has a duty to remove. See Restatement (Second) of Torts § 158 emt. n (1965). In turn, seetion 161 addresses the "Failure to Remove Thing Tortiously Placed on Land," explaining that there is no liability for allowing the thing to remain if "the possessor has been fully compensated" or "the possessor has elected to retain the thing on the land as a part of it" or "if he refuses to permit the actor to enter the land and remove the thing." See id. § 161 & emt. d; id. § 160 cmts. I-m; see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 41 n. 5, 990 P.2d 945 (discussing section 160, but conelud-ing that it was inapplicable under the facts). The Restatement's use of the disjunctive "or" indicates that the occurrence of any one of these cireumstances relieves a party of liability for the failure to remove the thing. See generally State v. Jeffs, 2011 UT 56, ¶ 62, -- P.3d --, 2011 WL 4447619.
150 As discussed, the Dones cannot prevail on a claim that the matter has been fully settled due to insufficient evidence on that point. Nevertheless, the evidence plainly re-fleets that the Carters elected to retain the dirt on their property "as a part of it" after the settlement with the trespassers. See Restatement (Second) of Torts § 161 emt. d. Consequently, I would hold that they have extinguished any alleged duty of the Dones to remove the dirt.
IIL Damages
151 Even if I were convinced that the Dones were liable in trespass, I would reverse the district court's damage award.
The plaintiff's recovery [for trespass] can include compensation for diminution in the land's value and compensation for any personal or property injury that resulted from the encroachment on the land. To prove these types of damages, a plaintiff must prove the extent of the defendant's invasion and the gravity of the interference with the plaintiff's possessory rights, facts which also establish liability.
Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1244-45 (Utah 1998) (citations omitted). Here, the only evidence of the diminution in the value of the Carters' property was the testimony from a certified general appraiser called by the Dones who indicated that the total reduction in value due to the trespass was $319. Neither party has pointed us to any other evidence that quantifies the personal or property injury that resulted from the encroachment on the land. Instead, the district court relied on its recollection that the Carters' retaining wall cost $25,000 to build and assumed that the Dones saved a like amount by relying on the trespassing dirt to build their improvements. However, the amount that it would cost the Dones to build a retaining wall is not a proper measure of damages for the invasion of the Carters' possessory interest. See id. at 1244.
52 Like the majority, I conclude that the district court could properly consider the cost of the Carters' retaining wall in applying the balancing of equities test to determine whether injunctive relief was appropriate. Under that test, "where an encroachment does not irreparably injure the plaintiff; was innocently made; the cost of removal would be disproportionate and oppressive compared to the benefits derived from it, and [the] plaintiff can be compensated by damages; equity may in its discretion elect not to compel removal." See Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah 1975); see also Carrier v. Lindguist, 2001 UT 105, ¶ 31, 37 P.3d 1112. After conducting this analysis, the district court determined that the equi*1141ties supported an award of damages rather than an order that the Dones remove the dirt from the Carters' property. Once it reached that conclusion, the district court was required to award damages appropriate for an action in trespass not unjust enrichment, a claim never pleaded or tried. Thus, I agree with the majority that the proper measure of damages was the diminution in the value of the property caused by the presence of the dirt. See supro 181. The only evidence on that point is the appraiser's testimony that the property declined in value by $319 as a result of the change in slope caused by the dirt. Therefore, the award of $25,000 is not supported by the record.
153 For all of these reasons, I would reverse the decision of the district court.
. I also would not affirm on an unjust enrichment theory, both because it was not pleaded or tried and because the trespassing contractors, not the Carters, conferred a benefit on the Dones by dumping the dirt. See Rawlings v. Rawlings, 2010 UT 52, ¶ 29, 240 P.3d 754 ("A claim for unjust enrichment in Utah requires proof of three elements: (1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value." (internal quotation marks omitted)). While the Carters did confer a benefit on the Dones by leaving the dirt, they did not do so under circumstances making it inequitable for the Dones to retain the benefit without paying. Instead, after settling with the actual trespassers, the Carters elected to leave the dirt in place.
. There is no evidence that the Dones' improvements at the front of their property intrude onto the Carters' property. See generally Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243 (Utah 1998) (''The essential element of trespass is physical invasion of the land.").
. As Rocky John Kay, one of the Dones' contractors testified, however, the typical practice in the neighborhood was to follow the "contour of the sidewalk," by "blending the[] front yards in together." Thus, the Carters' front yard retaining wall was unusual because the common practice was to level the front yards with fill dirt. Indeed, Kay stated, "I would have never dreamed there would have been a retaining wall there.... In fact, I don't ... recall even seeing one in that neighborhood in the fronts of the yards."
. This was a trial to the court, so there was no concern that a jury would be affected by the - discussion. Nevertheless, counsel for the Carters indicated concern about affecting the witness's testimony.