28.5.4 Damages for Trespass to Land.

JurisdictionArizona

28.5.4 Damages for Trespass to Land. There are a variety of approaches to calculate damages arising out of trespasses. As a general principal, the plaintiff may seek to recover under whichever calculation of damages is best suited to fully compensate the plaintiff for the loss.49

In cases where a defendant has intentionally trespassed but caused no damages, a plaintiff may still recover nominal damages.50 The plaintiff is not required to explicitly pray for nominal damages in his complaint; in the event that he is unable to prove an entitlement to compensatory damages, he may still be entitled to nominal damages.51 In the event of permanent damage to property, a plaintiff may recover the difference in market value of the land before and immediately after the trespass.52

In the event of repairable damage, courts allow recovery in an amount that would allow the plaintiff to restore the property to its former condition and put the plaintiff in the position he was in before the trespass.53 Under Arizona law, if the cost of restoration is used, it may not exceed amount of diminution in the fair market value of the property as a result of the trespass.54 However, if the defendant damaged an object located on or affixed to the real property, the cost of that restoration can exceed the diminution of market value of the real property caused by the trespass and subsequent destruction of or damage to the object.55

In addition to repair costs, damages can include the amount necessary to compensate the plaintiff for the temporary loss of use of the land,56 the loss of expected profits,57 and actual discomfort or annoyance caused by the trespass (other than “pure emotional distress”).58

There are some cases that consider the gain the trespasser has realized from his wrongful conduct.59 For example, the Arizona Court of Appeals has recognized that the value of materials taken from property by the defendant may be the proper measurement of damages in certain situations to avoid unjust enrichment, especially in situations in which the land from which the materials were taken is worthless.60 Note, however, this equitable approach to trespass has been explicitly rejected by other courts.61 In at least one case, the Arizona Supreme Court has affirmed an award of punitive damages.62


--------

Notes:

[49] Accord Armitage v. Decker, 267 Cal. Rptr. 399, 409 (Cal. Ct. App. 1990) (“There is no fixed, inflexible rule for determining the measure of damages for injury to, or...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT