E. Remedies

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

E. Remedies

A trespass that is innocent or negligent is a basis for nominal²⁷ or compensatory damages.²⁸ Entry alone entitles the possessor to at least nominal damages.²⁹ Damages recoverable for a temporary trespass are limited to lost rental value and those for permanent trespass are limited to the full market value of the property.³⁰ Punitive damages may be awarded where the trespass was wanton, willful or in reckless disregard of the plaintiff's rights.³¹ While there can be no punitive damages without actual damages,³² courts have held that evidence supporting an award of at least nominal damages would also support punitive damages.³³

Any continuing abatable invasion to property is a continuous injury, and each one, by the encroachment, gives rise to a new cause of action.³⁴ Injunction as a remedy is available for a continuous trespass.³⁵

Although there is a statute limiting damages in civil actions to recover the fair market value of the timber to three times the fair market value of the timber,³⁶ it is not the exclusive remedy available to an injured plaintiff. The plaintiff may proceed in trespass, and while recovery of damages for timber may be limited to three times the fair market value, the statute does not express a legislative intent that all damages resulting from that removal be capped.³⁷

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Notes:

^[27] Johnson v. Phillips, 315 S.C. 407, 433 S.E.2d 895, 900 (Ct. App. 1993). Compare Green Tree Servicing, LLC v. Williams, 377 S.C. 179, 659 S.E.2d 193 (Ct. App. 2008) (if plaintiff establishes willful trespass, damages from invasion of plaintiff's legal rights will be presumed sufficient to sustain action though damages may be only nominal and not capable of measurement).

^[28] Moore v. Cummings, 87 S.C. 166, 69 S.E. 154 (1910). The measure of damages for permanent injury to real property by pollution is diminution in market value. Ravan v. Greenville County, 315 S.C. 447, 434 S.E.2d 296 (Ct. App. 1993); Horry County v. Insurance Reserve Fund, 344 S.C. 493, 544 S.E.2d 637 (Ct. App. 2001).

^[29] Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797, 802 (Ct. App. 1991). However in Mack v. Edens, 320 S.C. 236, 464 S.E.2d 124 (Ct. App. 1995) the court affirmed the decision that a trespass had occurred but reversed the award of both actual and punitive damages.

^[30] Babb v. Lee County Landfill SC, LLC, 405 S.C. 129, 747 S.E.2d 468 (S.C. 2013).

^[31] Hinson v. A.T. Sistare Construction Co., 236 S.C. 125, 113 S.E.2d 341 (1960), overruled on other grounds, McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985)...