Chapter 28 - § 28.3 • DAMAGES
| Jurisdiction | Colorado |
§ 28.3.1—Damages to Real Property Generally
Although damages may not be calculable with mathematical exactitude, so long as the plaintiff introduces some evidence that is sufficient to allow a reasonable estimate of damages, it is incumbent upon the trier of fact to determine a monetary award which will adequately compensate the plaintiff.95 The normal measure of damages for injury to real property is the difference in market value before and after the injury.96
The measure of damages for injury to real property is not invariable.97 The goal in compensating the property owner is to reimburse that owner for the actual loss suffered.98 Worded another way, "the law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort."99
In two decisions from the early part of the twentieth century, the Colorado Supreme Court stated that the proper measure of damages was the diminution of market value.100 It was soon noted, however, that this rule "is not of universal application, there being cases in which it would not do justice."101 The court recognized that different measures of damages, including the cost of restoring the property to its original condition, may be appropriate under certain circumstances if the actual loss suffered is to be truly compensated.102 The considerations governing what is an appropriate case for departure from the market value standard are not susceptible to reduction to a set list, and no formula can be devised that will produce litmus-test certainty and yet retain the flexibility to produce fair results in all cases. The selection of the proper measure of damages in tort for injury to real property requires the exercise of informed discretion by the trial court, and no single measure of damages and no arbitrary limit on the amount permissible can be applied to limit the exercise of that discretion.103
The measure of damages for non-willful trespass involving the removal of vegetative material from land is the value of the appropriated material, less the direct cost of extraction. The burden of establishing the cost of extraction is on the party claiming the reduction.104 For the measure of damages for trespass involving the removal of minerals, see § 28.3.3.
§ 28.3.2—Damages for Injury to Trees
Damage to growing trees is generally measured by the diminution in the market value of the real property.105 However, aesthetic value may be considered in establishing the replacement cost of certain unique property.106 Nor is the only value of a growing tree its value as potential lumber;107 aesthetic value may be considered in determining the damages resulting from the uprooting of a tree.108
§ 28.3.3—Damages for Removal of Minerals
In the first reported case in Colorado dealing with the measure of damages for the removal of ore from the land of another, the court said that the measure of damages and the materiality of the character of the defendant's entry were dependent upon the form of the action. The action being one for conversion, the court held that the character of the entry, whether innocent or willful, was immaterial, and that the measure of damages was the value of the ore after it had been severed. Under this measure of damages, the wrongdoer is not allowed credit for the expense of mining, but is allowed credit for the expense of raising the ore from the mine after it is broken and the expenses of transportation and treatment.109
The subsequent cases generally treat the wrongful removal of ore as a trespass to land and hold that, for innocent trespass, the measure of damages is the value of the ore in place before it was disturbed. This value may be determined by deducting from the value of the product sold the expense of making the product—that is, by allowing the trespasser credit for the expense of mining, tramming, and hoisting the ore to the surface, the expenses of treatment, sampling, hauling, and railroad freight, and the expenses of milling and smelting if these operations are performed.110 Alternatively, in a proper case the value may be determined by ascertaining the amount of royalties the landowner would receive or could have received from the trespassing appropriator.111 If the trespass is willful, the measure of damages is the full amount realized by the trespasser at the time of the conversion, without deductions for any expense in making the finished product from the raw material. In other words, the trespasser must bear the expenses of mining, transporting, and treating the ore.112
§ 28.3.4—Other Elements of Damages
Damages available on trespass claims can include not only diminution of market value, costs of restoration, and loss of use of the property, but also discomfort and annoyance to the property owner as the occupant.113 Damages for loss of use and enjoyment of property, on the one hand, and for annoyance and discomfort, on the other hand, are not duplicative. The use and enjoyment of property is a proprietary interest, while annoyance and discomfort are personal interests. The owner of land who is not an occupant may recover only for the impaired value of his or her property, while an occupant-owner may recover both his or her proprietary and personal loss.114
Loss of Use and Enjoyment
Recovery for loss of use and enjoyment of land is limited to the loss of rental value occasioned by the invasion.115
Annoyance and Discomfort
Damages available on trespass and nuisance claims can include not only diminution of market value or costs of restoration and loss of use of the property, but also discomfort and annoyance to the property owner as the occupant.116 Generally, the annoyance and discomfort for which damages may be recovered on nuisance and trespass claims refer to distress arising out of physical discomfort, irritation, or inconvenience caused by odors, pests, noise, and the like.117
Emotional Distress
In the absence of fraud, malice, or other willful and wanton conduct, there is generally no recovery in tort for mental suffering resulting from injury to property.118 In particular, a plaintiff may not recover for emotional distress on a negligence claim.119 Thus, while the Colorado cases have permitted recovery for annoyance and discomfort damages on nuisance, trespass, and negligence claims, they have also precluded recovery for "pure" emotional distress.120
Litigation-Related Expenses
Costs, expenses, fees, or loss of employment income, including travel costs or lost income in connection a deposition proceeding or attendance at trial, are not damages directly attributable to trespass.121
§ 28.3.5—Exemplary Damages
Exemplary damages for trespass may be awarded where the...
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