concurring and dissenting.
I concur with the majority opinion in holding Wonnenberg liable, in reversing the award of $10,000 for exemplary damages, and in reversing the award of $89,-594.16 to Chuck Lang for loss of cattle raising profits. I part company with the conclusion that the plaintiffs did not receive some double recovery from the separate awards for the diminished value of *843their land in 1983 (the year of the greatest flooding) as well as for loss of use of part of their land for the succeeding six years, 1983 to 1988.
There are several uneasy aspects about these separate damage awards.
Diminished value damages depend on “permanence” — that is, whether restoration was “impossible or impracticable” “within a reasonable period of time.” NDCC 32-03-09.1. Unfortunately, restoration of the productive capacity of flooded land is neither a subject of common knowledge nor of judicial expertise. Still, there are some uncomfortable assumptions in the majority’s blithe conclusion that the damage to the plaintiffs’ sloughs was “permanent in nature” because there was evidence that long-standing water destroys tame grasses and turns soil “sour” by killing bacteria essential for crops and grasses. One assumption is that the conglomeration of bareness, brush, cattails, reeds, saplings and weeds which appears when a slough first drys out represents an enduring condition. I doubt that.
Because there was only skimpy evidence in this record about how sloughs are returned to production after they have dried out, Wonnenberg’s appellate brief resorted to conventional geology rather than the record:
It is common knowledge that North Dakota experiences short-term and long-term weather cycles. These sloughs (and thousands like them) have been alternately flooded and parched since the last ice age. Yet, the wet and dry cycles did not “permanently damage” these sloughs.
There is merit in this argument. Sloughs do dry out and can be put to productive use again.
After all, plaintiffs had sloughs, though smaller, before Wonnenberg’s drainage. Moreover, the source of extra water to these sloughs was dried up by the trial court. The trial court enjoined Wonnen-berg to restore his land to the original contours and this injunction was not appealed. In the long-run, plaintiffs’ sloughs will be affected only by natural runoff, as they were before Wonnenberg’s drainage activities. Plaintiffs’ increased flooded conditions were not “permanent.”
So, “permanent” here means something less than perpetual or everlasting, the primary sense of the word. “Permanent” here implies that the sloughs were not brought back to their previous productive condition “within a reasonable period of time” and that to do so was “impracticable,” rather than “impossible,” the key ideas in NDCC 32-03-09.1. The trial court must have inferred that it was “impracticable” to restore the sloughs to production because it had not yet been done by trial time in late 1988 after repeated floodings between 1980 and 1983. I say “must have inferred” because there was no direct testimony by any expert that it was either “impossible” or “impracticable.”
On the contrary, plaintiffs’ expert engineer admitted to the trial court that the land could be restored to its former condition, but did not explain when or how. Wonnenberg’s expert engineer testified that the wetlands, “now that they are dry,” could be used for agricultural purposes and that they were not “permanently damaged,” but he too did not explain when or how they could be restored to their previous productive capacity. Indeed, at the end of the trial and before decision, the trial court asked without getting an answer:
Another thing that bothers me about the plaintiffs’ case, there has been no water over it [the sloughs] since 1983.... Why can’t this land be reclaimed? What evidence is there that it can’t be reclaimed, or that it’s impractical in the words of the statute?
In sum, the finding of “permanent damage,” which justified a diminished value award, depends on an inference that plaintiffs’ sloughs could not be restored to their preexisting condition “within a reasonable period of time.” This inference was apparently made from circumstantial evidence that they were not restored within eight years after the first increased flooding or within five years after the most recent flooding added to by Wonnenberg’s drain*844age activities. I have difficulty with that finding and I doubt that I would have so found if I had been the trial judge. But as sketchy as the evidence of impracticability of restoration may be, there was the circumstantial evidence that restoration was not done. Therefore, I reluctantly accept that it was not clearly erroneous for the trial court to find that it was impracticable to restore plaintiffs’ sloughs within a reasonable time.
Without evidence of the cost of restoring the sloughs to their previous productive capacity, I agree with the majority that the diminished value of the land was the proper measure of damages. Long ago in Harke v. Ewald, 51 N.D. 828, 200 N.W. 1009, 1010 (1924), this court suitably explained:
There is'no evidence in the record as to the cost of reparation and, in the absence of such evidence, we are of the opinion it should be assumed that the cost of restoration would be approximately the equivalent of the diminution in value. In other words, where witnesses testify to the diminution in value, it is reasonable to suppose that in forming their judgment they have taken into consideration what it would cost to restore the [property] to its former condition.
Likewise, other factors are reckoned into diminished value. Decreased value normally takes into account the loss of future use of the injured property.
This is another uneasy aspect of these separate awards — the duplication between the diminished value in 1983 and the decreased profits thereafter until trial in 1988. Comment a of Restatement (Second) of Torts § 929 (1979) makes it clear that this overlap of compensation is inappropriate:
Recovery for depreciation resulting from a past invasion is, in a legal sense, prospective since it is based upon the fact that the land has lost its present value because of harm to its future use. The effect of the harm upon a reasonable prospective purchaser is the test.... The [injured] condition, though not permanent, would affect the offer of a reasonable purchaser.
While the Restatement does recognize that the “loss of use of the land” can sometimes be recovered in addition to diminished value (or the cost of restoration), the Restatement is careful to caution against duplication of damages. Comment d of Restatement (Second) of Torts § 929 (1979) says:
In addition to damages for the diminution of the value or other similar elements of damage, the plaintiff is entitled to recover for the past or prospective loss of use caused by the defendant’s wrong as far as this has not been included in the other elements of damages awarded to the plaintiff, as stated in § 931. Thus if the plaintiff’s land has been flooded for a month so that he was unable to use the land, he is entitled to recover for this loss although there was no permanent harm to the land caused by the flood. (Emphasis added).
Here, as I understand the trial court’s awards, the diminished value was calculated for 1983. The plaintiffs’ appraiser testified that in 1983, the market value of plaintiffs’ flooded lands had decreased from $350 and more per acre to next to nothing, or $50 per acre. It was this evidence of the decreased value which the trial court used to fix the damages for diminished value. Besides, the trial court awarded each of the Lang plaintiffs additional damages for loss of income from their wetlands thereafter until trial in 1988. Since loss of future profits was necessarily included in the award for decreased value in 1983, I believe that there was duplication of damages.
The effect of this duplication can be understood by comparing the size of the loss-of-profits awards to the diminished value awards. Bill and Luella Lang received a “permanent damage” award for diminished value of $30,880.00, but their loss of profits award was $56,563.85 for total damages of $87,440. This totalled over $540 per acre for their entire 160 acres, although only 53 acres were flooded or cut off. Before the flooding, the entire 160 acres were valued at $81,520, or only $510 per acre. Wonnen-berg must pay more than the value of the *845land, yet Bill and Luella Lang get to keep the land, which is now dry.
Similarly, Chuck and Brenda Lang received a “permanent damage” award for diminished value of $39,588, and their loss-of-profits award was $89,594 for total damages of $129,182. Although only 15.1 acres were flooded, the total equals over $200 per acre for their entire farm of 640 acres. The sloughs are now dried out and Chuck and Brenda Lang still have their land. This kind of duplication of damages should not be approved.
The effect is emphasized by the award to Schlenkers. No award for loss of profits was made to them because rent from their land had continued unabated after Wonnen-berg’s drainage activity — a circumstance which also casts doubt on the “permanence” of the injury. Still, there was no duplication of damages to Schlenkers.
Of course, I realize that the majority opinion reverses the $89,594 award to Chuck and Brenda Lang for loss of profits because it did not properly factor in related and unexpended costs. Yet, recomputation of that award is permitted on remand and loss of profits is being allowed for the time after the diminished value was determined. I would reverse both loss-of-profit awards and remand for recomputation to allow only loss of profits prior to the date at which “permanent damages” were calculated in 1983.
As approved by the majority opinion, there is one saving grace to the damage awards. The trial court did not allow any prejudgment interest for diminished value. This somewhat moderates the effect of duplication of damages, of course, but I believe that, in this case, interest would be a more equitable allowance than the exaggeration of the diminished values by addition of lost profits for five more years.
To that extent, I respectfully dissent.
ERICKSTAD, C.J., concurs.