No. 85-363
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ALDO KEBSCHULL,
Plaintiff and Appellant,
-VS-
HARVEY NOTT ,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honora.ble G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George T. Radovich, Billings, Montana
For Respondent:
Laurence R. Martin, Billings, Montana
Submitted on Briefs: Oct. 10, 1985
Decided: January 28, 1986
Filed:
J N 2 2 1986
A
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a judgment of the District Court
of the Thirteenth Judicial District in and for Carbon County,
Montana. The Honorable G. Todd Baugh entered a judgment in
favor of the plaintiff, but no damages were awarded because
of a prior ruling by the Honorable Charles Luedke restricting
damages. We affirm.
Plaintiff, Kebschull, owns a 170 acre farm about three
miles northeast of Bridger, Montana, on the Clarks Fork of
the Yellowstone River. He leased 120 acres of arable ] a d to
.n
defendant, Nott, who farmed it. Kebschull lived on the
remaining portion, and pastured a few cattle. While Nott was
burning brush along a ditch bank to clear it, a strong wind
arose, and in spite of Nott's efforts to contain the fire, it
spread from the ditch to Kebschull's river bottom land
adjacent to the ditch, including a bushy, wooded island. The
area which was burned is approximately 5.8 acres of natural,
unimproved growth, consisting mainly of underbrush and
noncommercial trees, mostly cottonwoods. Nott's liability
for starting the fire is not disputed. There is testimony
the fire did not result in any diminution in the fair market
value of the burned property.
Kebschull filed an action to recover damages for the
destruction of the growing vegetation. Prior to trial the
District Court ruled, on motion for summary judgment, that
Nott was stricktly liable for damages from the fire. On
cross-motions in limine the court ruled the proper measure of
damages in this case was the difference in market value of
the real property before and after the fire. The parties
stipulated that Nott set the fire and the fire was the
proximate cause of the damage to the vegetation. Only the
issue of damages proceeded to trial and the evidence at trial
was limited by the court's prior ruling granting Nottls
motion in limine excluding evidence relative to the
replacement value of the destroyed items. No damages were
awarded because both Kebschullls and Nott's appraisers agreed
there was no difference in the market value of the burned
property before and after the fire.
Kebschull's appeal raises only the legal issue of
whether the District Court's ruling on the cross-motions in
limine and resulting limitation of evidence a.t trial is
correct as a matter of law.
By granting Nott's motion in limine the court correctly
ruled the proper measure of damages for the injury by fire to
growing vegetation on the property is the difference between
the market value of the real property before and after the
fire.
Kebschull argues he must be allowed restoration costs,
citing Spackman v. Ralph M. Parsons Co. (1966), 147 Mont.
500, 414 P.2d 918, and Bos v. Dolajak (1975), 167 Mont. 1,
534 P.2d 1258. Kebschull misinterprets these cases, however.
Spackman does not allow restoration costs. In Spackman sewage
backed up into the basement of plaintiff's motel causing
considerable damage to various machines and personal property
stored there. Plaintiff made a careful list of all damaged
items, valuing many of them as though they were new although
they were not. The Court said the purpose of awarding
damages is to compensate the injured party for actual loss or
injury -- no more, no less.
[There are many] ingenious methods,
systems and formulas for determining in
monetary terms the value of property
partially damaged or destroyed ...
Another guide or measure concerns
property damaged but not totally
destroyed, in which case the genera.11~
accepted estimate of damages is the
difference in market value at the place
before and after injury.
Spackman, 147 Mont. at 506-507, 414 P.2d at 921-922.
Ultimately good sense must be applied, rather than mechanical
application of formulas.
This Court is aware that rigid adherence in all cases
to the above rule would not always serve the objectives of
compensating the injured party for actual loss. In some
cases the property might be more valuable after destruction
of part of it, and strict application of the rule would
penalize the owner and reward the wrongdoer. Nor should a
landowner be forced by this method to put his land to a use
for which he has no desire because the loss has conditioned
the land for a higher use.
Such results can be obviated by ascertaining a value
separate from the land of the thing destroyed or damaged, and
then compensate the injured party for restoration or
replacement costs. This is what the court did in Bos, supra.
Kebschull's reliance on - is likewise misplaced,
Bos
however. The action in - arose out of negligence as well
Bos
as breach of contract. We upheld a jury award of the market
value of a damaged silo at the time of the loss, although the
award was greater than the amount paid for the purchase of
the used silo. Plaintiffs also were awarded replacement
costs and damages they had incurred for loss of use, less an
offset for the foundation. The silo in - was not a readily
Bos
replaceable item. Its expected use was integrated into the
Bos' dairy farming operation and destruction of the silo
presented serious problems. The rule in Spackman can not be
applied in - nor can the rule in - be applied in the
Bos, Bos
immediate case. In this case the property is growing
vegetation which is part of the real property.
We have not had previous opportunity to apply the
general rule of damages to growing vegetation, as have some
of our sister states.
The Minnesota court makes a distinction between
vegetation which serves a utilitarian purpose, Rector, Etc.
v. C. S. McCrossan (Minn.. 1975), 235 N.W.2d 609, and those
which are for the most part ill-formed, unattractive, and of
little intrinsic value. Baillon v. Carl Bolander & Sons Co.
(Minn. 1975), 235 N.W.2d 613, 615. In Rector where in
addition to their natural aesthetic beauty, the trees acted
as a sound barrier, the high court a-llowed the jury to
consider cost of replacement and before and after value of
the land in order to permit flexibility and achieve a just
and reasonable result. 235 N.W.2d at 613. In Baillon,
however, the court refused to adopt the replacement rule
saying to do so conceivably would involve an expense greatly
out of proportion to the actual damage to the real estate.
235 N.W.2d at 615.
The Arkansas court found that some shade trees which
were destroyed by fire were part of the freehold and their
value was actually the depreciation of the value in the
property on which they stood. Because their value depended
on their connection with the soil, the measure of damages is
the difference in market values before and after the
destruction. Cy Carney Appliance Company v. True (Ark.
1956), 295 S.W.2d 768. Thus a determining factor is whether
the d-estroyed trees have any value apart from the land where
they stood.
We believe the Arkansas holding to be better reasoned.
Even if we applied the Minnesota court's reasoning, however,
the measure of damages in this case must be the difference
between the value of the property before and after the fire.
The replacement cost of the trees would be greater than the
actual damage to the real estate regardless of their utility
or lack of utility. Appraisers for both Kebschull and Nott
testified the market value of the land was not diminished as
a result of the fire.
The order of the District Court is affirmed.
We concur:
,