Opinion
No. 74-603
Decided March 18, 1976. Rehearing denied April 22, 1976. Certiorari granted June 21, 1976.
Defendants appealed from plaintiff's recovery in a negligence action of $1,500 for a tree removed by defendants from plaintiff's property and $11,062 for water drainage problem caused by defendants.
Reversed
1. DAMAGES — Real Property — Erroneous Measure — Diminution in Value — Reflect Actual Loss. Where defendants removed a tree on plaintiff's property, the difference in fair market value of the property before and after the injury was the proper measure of damages since it more accurately reflected the actual loss suffered by plaintiff as opposed to the cost of repair and replacement of the tree.
2. Burden of Proof — Evidence Necessary — Dismissal Proper. Since, in action for damage to real property, plaintiff had burden of proving, both fact of damages and a basis for computing the amount, failure to prove both properly resulted in dismissal of the action.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Donald L. Elmore, P.C., for plaintiff-appellee.
Neef, Swanson Myer, Allan B. Adams, for defendants-appellants.
Division I.
Defendants appeal from the trial court's judgment in favor of plaintiff for damages incurred as a result of the negligence of defendants in their construction of an apartment building adjacent to plaintiff's apartment building. After a trial to the court, plaintiff was awarded damages of $1,500 for a tree removed by defendants from plaintiff's property, and $11,062 for a water drainage problem caused by defendants' construction.
Defendants contend that the trial court improperly applied the law concerning damages. We agree.
The trial court's damage awards were based on a cost estimate of $11,062 to repair the drainage problem and prevent structural damage, and an estimate of $1,500 as the reasonable replacement value of the tree removed by defendants.
As a general rule, the measure of damages to real property is the difference between the fair market value of the property before and after the injury. Dandrea v. Board of County Commissioners, 144 Colo. 343, 356 P.2d 893; Frankfort Oil Co. v. Abrams, 159 Colo. 535, 413 P.2d 190; Mogote-Northeastern Consolidated Ditch Co. v. Gallegos, 70 Colo. 550, 203 P. 668; Mustang Reservoir, Canal Land Co. v. Hissman, 49 Colo. 308, 112 P. 800. This measure also applies to injuries to growing trees. Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348; Cities Service Gas Co. v. Christian, 340 P.2d 929 (Okla.).
However, relying on Fort v. Brighton Ditch Co., 79 Colo. 462, 246 P. 786; Colorado Bridge Construction Co. v. Preuit, 75 Colo. 107, 224 P. 222; and Big Five Mining Co. v. Left Hand Ditch Co., 73 Colo. 545, 216 P. 719, plaintiff argues that replacement and repair costs may also be an appropriate measure of damages for injury to real property.
From our examination of these cases and also Bobrick v. Taylor, 171 Colo. 375, 467 P.2d 822, we conclude that a deviation from the well-established general rule of diminution in market value is permitted only where the circumstances indicate that repair or restoration costs more accurately reflect the actual loss suffered, compensation for which is, of course, the goal under either rule. Here, however, the general rule would more accurately reflect the actual loss suffered by the plaintiff.
This is not a case where the property had no market value. Cf. Big Five Mining Co. v. Left Hand Ditch Co., supra. In fact, when plaintiff testified he sold the property for $361,000, he established market value after the injury. He did not attempt, however, even when questioned on the matter, to show that the preinjury value was difficult to ascertain, nor did he claim that the injury he suffered caused him to accept less for his property, or that if the injury had not occurred he could have sold his property at a higher price. Having failed to demonstrate any of these contentions he showed no justification for a deviation from the general rule of diminution in value. See Dandrea v. Board of County Commissioners, supra.
Plaintiff sold the property and building during the course of the litigation. Plaintiff, in his brief in this court, asserts that his grantee "took the property subject to its defects and subject to its potential difficulties occasioned by defendants' negligent and trespassory acts." Thus it is apparent that plaintiff, who seeks to measure his damages by restoration costs, will never make those restorations. His actual loss, if any, came about only by way of a diminution in the price at which he sold the property. The facts here are therefore readily distinguished from those in Bobrick v. Taylor, supra, where repair costs more accurately reflected plaintiffs' actual loss because the injured property was a recently acquired private residence and the plaintiffs' interest thus was in having the property restored.
[1] Accordingly, we conclude that although "the measure of damages for injury to real property is not invariable," Colorado Bridge Construction Co. v. Preuit, supra, in the instant case the difference in fair market value is the proper measure of damages.
[2] Furthermore, although estimates of repair and replacement cost may be admissible to aid in utilizing the diminution of market value measure of damages, such estimates must be related to market value and are "received only as they would have a bearing on and influence opinion as to value." Dandrea v. Board of County Commissioners, supra; Hinsey, supra. Here, plaintiff testified that he "believed" the market price of the building to be adversely affected by the lack of trees and the drainage problem, but he also thought that "the buyer would have to comment on that." Although he also testified that he sold the building because he "needed the money," he did not say what effect, if any, this factor had on the sale price. We find these statements too indefinite and equivocal to be evidence of the market value before and after the injury to which the estimates of repair and replacement could be related. Thus, there was no basis for the trial court's damage award. Plaintiff has the burden of proving not only the fact of damage, but also a basis for computing the amount as well; failure to prove both properly results in a dismissal. Hoover v. Shott, 68 Colo. 385, 189 P. 848.
In light of our disposition of this allegation of error, we need not discuss the other contentions of the defendants. Plaintiff did not file a motion for a new trial, and therefore his contention, on cross-appeal, that the court erred in its finding that only one tree was removed need not be considered. C.R.C.P. 59(f); Watson v. Watson, 135 Colo. 296, 310 P.2d 554; cf. Delta v. Thompson, 37 Colo. App. 205, 548 P.2d 1292.
The judgment is reversed and the cause is remanded with directions to dismiss the complaint.
JUDGE ENOCH concurs.
JUDGE COYTE dissents.