20240215_C364826_29_364826.Opn.Pdf ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
STANLEY SIMMONS and PATRICIA SIMMONS, UNPUBLISHED
February 15, 2024
Plaintiffs-Appellants,
v No. 364826
Gratiot Circuit Court
ROGER A. RYDER and PAM BENTLEY, LC No. 21-000433-CH
Defendants-Appellees.
Before: LETICA, P.J., and CAVANAGH and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs prevailed in a bench trial on their claims to quiet title and for civil trespass
regarding a 31-foot-wide strip of their real property that defendant Roger A. Ryder wrongfully
claimed he had acquired when he purchased an adjoining property from defendant Pam Bentley.
Following an evidentiary hearing on damages—damages which allegedly resulted from Ryder’s
removal of some trees, shrubs, and plants, as well as from altering the soil, foliage, and
undergrowth—the trial court awarded plaintiff monetary damages in the amount of $1,995, which
was the cost of installing 21 arrowwood viburnum trees. The trial court also ordered that (1) a
remedial survey be completed—with plaintiffs splitting the $4,350 cost with Ryder; (2) Ryder
could reenter the property and complete the remedial excavation work; (3) plaintiffs were not
entitled to damages for the installation of a fence; and (4) plaintiffs were not entitled to recover
their costs and attorney fees incurred in prosecuting this legal action.
Plaintiffs appeal as of right, challenging the amount of damages awarded, and the holdings
that Ryder could perform the remedial excavation work and that the parties were to split the cost
of a remedial survey to reestablish the boundary between their properties. We affirm.
I. BACKGROUND
On February 24, 2021, plaintiffs filed their complaint against defendants Ryder and
Bentley to quiet title and for civil trespass, averring that (1) plaintiffs owned real property
commonly known as 312 W. Polk Road, Ithaca, Michigan since 1987; (2) Ryder owned real
property commonly known as 216 W. Polk Road, Ithaca, Michigan; and (3) Bentley owned real
property commonly known as 2025 N. State Road, Ithaca, Michigan. Ryder’s property was a
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triangular piece of property in the middle of, and bordering, both plaintiffs’ property and Bentley’s
property. The dispute involved the location of the boundary line between the parties’ properties—
a boundary line, plaintiffs averred, which was clearly marked and delineated with a fence. More
specifically, in 2020 Ryder commissioned a survey of Bentley’s property to be performed by
Tingley & Associates P.C., for the purpose of splitting Bentley’s parcel into two parts—one parcel
of which Ryder proposed to purchase. According to plaintiffs’ complaint, the Tingley survey
depicted the boundary line between plaintiffs’ property and Bentley’s property so that it
inaccurately and erroneously encroached 31 feet onto plaintiffs’ property. And Ryder purchased
that parcel from Bentley in December 2020. Ryder then proceeded to remove the boundary-line-
fence, as well as trees, shrubs, plants, foliage, vegetation, and undergrowth. Ryder also excavated
and moved a substantial amount of soil so as to change the topography and elevation of the land.
Count I of plaintiffs’ complaint sought to quiet title to the 31-foot strip of real property that
was wrongfully appropriated. Alternate claims of adverse possession and acquiescence were
stated in Counts II and III, but were subsequently waived by plaintiffs. And Count IV was a claim
of civil trespass against Ryder only, seeking damages for the diminution in value of plaintiffs’
property, the cost of remediation and restoration of their property, the loss of the value of the trees
destroyed, and other damages, as well as treble damages under MCL 600.2919, plus attorney fees,
costs, and interest. Plaintiffs attached numerous documents to their complaint, including pictures,
maps, property descriptions, deeds, and the Tingley survey.
A two-day bench trial was conducted beginning on April 12, 2022. Plaintiffs’ first witness
was Gilbert Barish, a professional surveyor for 22 years who testified as an expert in surveying
and land descriptions. Barish concluded that the Tingley survey incorrectly established the far
westerly boundary line. That survey failed to identify the fence that was located in the disputed
area of property which depicts a line of occupation, and also overran a controlling line depicted on
previous surveys and adjoining deeds. Barish particularly referred to a 1902 deed which conveyed
the west half of the southwest quarter of the southeast quarter and noted that the deed established
the controlling line.
Plaintiff Stanley Simmons testified that he owned the property at issue since 1987, and he
knew where the boundary lines of the property were located. Remnants of fence lines existed at
his west and east boundary lines, and the triangular property next to him, which was defendant
Ryder’s property, was fenced in its entirety. A survey that had been done in 1990 showed that the
boundary was 1288.5 feet west of the southeast quarter of section 24, which is the boundary line
between his parcel and Ryder’s triangular parcel; they had a common boundary line. The Tingley
survey claimed the boundary line to be 1319.54 feet west of the southeast corner. But there had
been no dispute about that boundary line until the Tingley survey came up—which provided for a
31-foot gap west of the Ryder triangle. The boundary line at issue had years of scrub growth, pine
trees, and other foliage which clearly depicted the line of occupation or possession.
Around January 2022, Stanley testified, he heard Ryder “plowing down my land.” Ryder
was removing the trees, shrubs, and foliage at that boundary line area, but about 31 feet west of
Ryder’s triangular parcel. Ryder was also flattening out the land, which left pretty steep cliffs on
plaintiffs’ property. Ryder’s excavation cut into the slope of a hill on plaintiffs’ property—leaving
a 7-foot ledge—and thereby removed the lateral support for the higher land and trees located there,
causing trees to fall. Stanley went to confront Ryder but, by the time he got there, Ryder “had
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basically annihilated that 30 foot” of land. Plaintiffs have a single-family home on their property.
Ryder has a farming operation on his property, and is involved in cattle farming. The 31-foot strip
of land at issue had mature trees on it that “created a complete buffer zone between my land and
Ryder property.” The growth on that strip of land provided a visual, wind, and noise buffer zone
between his residential property and this commercial operation. Now plaintiffs could see
everything going on at Ryder’s property. Prior to that, he could only see the peak of Ryder’s pole
barn. Stanley testified that he got a quote from Miller Brothers to excavate, fill, and grade about
700 feet of his property and he also got a quote from Snyder Landscaping for the planting of trees
and ground cover for erosion control. These quotes were to restore his property and they amounted
to over $100,000.
Plaintiff Patricia Simmons also testified that Ryder’s clearing of the east side of plaintiffs’
property eliminated the visual, wind, and noise barrier or screen that they had always enjoyed.
Patricia testified that Ryder had a lot of industrial or commercial activity on his property related
to his farming operation. She was devastated when defendant ruined their property. They had
enjoyed walking through the woods and the aesthetics of their natural property for almost 35 years.
The second day of the bench trial commenced on May 26, 2022, and began with the court
conducting a site visit. Defendants then called their first witness, Douglas Merchant, the assessor
and supervisor of Arcadia Township. Douglas testified that the township required that a survey
be performed when Ryder was going to purchase some of defendant Bentley’s property and he did
not review the survey for accuracy but had no reason to believe the survey performed was
inaccurate. He was aware the west-side boundary line was moved on the Tingley survey and
created a 31-foot strip gap-parcel between plaintiffs’ property and Ryder’s triangular property that
had never existed. Douglas testified that the value of agricultural property in 2022 was about
$5,450 an acre and the value of a residential wooded lot was about $3,500 to $3,800 an acre.
William Tingley, the surveyor who completed the Tingley survey also testified. He had
been employed as a surveyor since 1970. Tingley admitted that he was unaware of a 1902 survey
which would have affected the drafting of his survey. Tingley also admitted that he saw fragments
of a fence on the disputed western border but did not note that on his survey, although usually such
monuments are noted. He admitted that his survey was wrong in that it depicted the western
boundary line incorrectly—it should have been shown to be 31-feet westerly of where he depicted
it so that plaintiffs continued to own that property and not defendants.
Defendant Ryder testified that the Tingley survey did not depict the western boundary of
the property line where he thought it was; instead, it was placed 31-feet more westerly and onto
plaintiffs’ property. Ryder had been on that property his whole life and he and his family always
believed the disputed property was plaintiffs’ property. He knew there was an old fence which he
understood was the boundary line. After he completed purchasing Bentley’s property in December
2020, he started making it usable for his farming and cattle operation. He used a brush hog on a
skid steer to clear the thick underbrush on the property and hired an excavator to fill in low areas.
He also removed some trees. He installed two catch basins with underground tiles just west of his
original triangular piece of land. When plaintiff Stanley came over to complain about the clearing
of the property, Ryder gave him a copy of the Tingley survey. He knew plaintiffs were upset that
he was clearing that land. Ryder also had his attorney send plaintiffs a cease and desist letter,
advising them not to contact him or come on his property.
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On June 10, 2022, the trial court issued its oral opinion on this matter. The trial court
concluded that title to the disputed 31-foot strip of land should be quieted in plaintiffs’ favor.
Further, plaintiffs established their claim of civil trespass against defendant Ryder under
MCL 600.2919(1). However, because Ryder believed he was improving his own property, and
such belief was reasonable and credible, plaintiffs were not entitled to treble damages. The court
scheduled a future hearing to determine damages.
On September 12, 2022, the trial court entered an order (1) quieting title to the disputed
property in favor of plaintiffs and against any right or interest claimed by defendants; (2) finding
defendant Ryder liable for civil trespass but not for treble damages; and (3) stating that an
evidentiary hearing would be conducted to determine damages.
Thereafter, plaintiffs filed a memorandum of law for the evidentiary hearing on damages
for civil trespass. Plaintiffs explained that the real property at issue measured about 31 feet by
1,320 feet, i.e., approximately 40,920 square feet or .93 acres. And that defendant Ryder caused
substantial damage to that property “as he essentially completely leveled and cleared an
approximately one-acre strip of land that historically [had] been a wooded boundary that provided
effective visual, wind, odor, and noise screen between Plaintiffs’ residence and the farming
operation on Ryder’s property.” In brief, plaintiffs stated that their request for damages included:
(1) the cost of a survey and expert testimony by Gilbert Barish of $6,444 to reestablish the
boundary line; (2) the cost for excavation work to partially remediate the damage at a range of
$66,414 to $81,550; (3) the cost for landscaping work to partially remediate the damage at a range
of $30,151 to $58,005; (4) the cost of a fence at $7,546; and (5) court courts, recording fees, and
attorney fees associated with the matter at $35,000. The amount of damages totaled in the range
of $151,355 to $200,145. In support of their claim of damages, plaintiffs relied on the cases of
Schankin v Buskirk, 354 Mich 490, 494-495; 93 NW2d 293 (1958) (damages may include the
value of the trees cut to the contemplated or existing use of the land, including the costs of
replacement or restoration when the property destroyed had a unique value of its own); Szymanski
v Brown, 221 Mich App 423, 429-431; 562 NW2d 212 (1997) (replacement costs of trees allowed
when the plaintiff had used the property to derive aesthetic and spiritual satisfaction); and Thiele
v Detroit Edison Co, 184 Mich App 542, 545; 458 NW2d 655 (1990) (“The loss of aesthetic value,
the actual monetary value of the trees lost and the cost of their replacement constitute evidence of
the diminution in value of the freehold estate.”). Plaintiffs also attached photographs and quoted
estimates to support their request of damages.
Defendant Ryder filed a response to plaintiffs’ memorandum of law, arguing that he
obtained a topographic survey1 through D & M Site, Inc. and had a remediation quote prepared by
Merchant Excavating, Inc. which estimated the cost of remediation to be about $30,750. Ryder
argued that the quotes plaintiffs received and damages requested were grossly inflated. Ryder
argued that the soil that was displaced from plaintiffs’ property remains on the property so no fill
dirt or topsoil was required. Further, Ryder had the equipment and ability to move that dirt back
into its original location in compliance with the D & M Site recommendation. Moreover, Ryder
1
“A topographical survey indicates ground elevations and any adjacent structures on or near the
property.” Heath Twp v Sall, 442 Mich 434, 442, n 8; 502 NW2d 627 (1993).
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had the ability to remove the logs, firewood, and other debris upon being granted permission to do
so. Defendant Ryder argued that plaintiffs were pursuing grossly excessive damages “vindictively
and self-servingly.” And plaintiffs were actually seeking to improve their landscape—not simply
remediate it—by adding additional trees and a fence that did not previously exist. Further, Ryder
argued, plaintiffs were not entitled to court costs and attorney fees because Ryder reasonably relied
on the Tingley survey and plaintiffs failed to get their own survey before resorting to filing this
lawsuit.
On September 27, 2022, the hearing on plaintiffs’ damages commenced. Plaintiffs’ first
witness was Bruce Waldron, an expert in the field of excavation and owner of Bruce Waldron
Excavating. Plaintiffs had requested an estimate on putting their property back the way it was,
i.e., for restoration. He determined the amount of material that had been removed from the
property and the amount of material it would take to get that property back to a natural state where
vegetation would grow. His estimate is dated August 3, 2022. In his estimate, Waldron included
a culvert and would raise the grade in an area where plaintiffs used to access their property, but
had become washed out with the Ryder changes. He would also dig up the catch basin and tiles
that were placed by Ryder and cap them. Ryder had also placed crushed concrete on the property
for a parking area which would be removed and replaced with a heavy subsoil and then topsoil.
Waldron saw piles of rocks and logs on plaintiffs’ property and he would remove the logs and
firewood and place them on Ryder’s property. While there was a pile of topsoil remaining on
plaintiffs’ property, it was only about 150 to 200 yards of topsoil and much more had been
removed. He proposed to bring in about 850 yards of subsoil and 1400 yards of topsoil. When he
walked the property, Waldron noted several places where two to four feet of soil was removed.
He determined the amount of material that was needed to make the natural lay of the land; in other
words, to build the grade back up to match the contour of the hills and slopes. About 12 inches of
topsoil was needed throughout so that trees and vegetation could take root. The total estimated
cost of the project was $66,550, which included about $14,600 for labor and equipment. Topsoil
costs $28.40 a cubic yard and subsoil costs $12.40 a cubic yard so the cost of materials was more
than $50,000. And if he could not access plaintiffs’ property through Ryder’s property, it would
cost an additional $15,000 to build an access road and then remove that access road after the project
was completed. Waldron acknowledged a previous estimate by Miller Brothers Excavating from
April 2022 which estimated the cost of the project at $66,414—very close to his estimate. And
Waldron admitted that he had never been on plaintiffs’ property before the purported damage was
done.
Plaintiffs’ next witness was an expert in landscaping, Mark Hahn, who works at Twin City
Landscaping and had worked there for 40 years. He prepared an estimate that was dated August
2, 2022, to restore plaintiffs’ property the best they could but it would take time for the growth to
occur. The southern 700-feet of land would be larger trees and larger cover items and the northern
620 feet of land would be more ground cover, brush, and shrubs. The total for the most-minimum
quote was $30,151, but when larger trees are added the maximum quote was $42,961. Hahn
testified that this would be the “bare minimum” to provide for a screen or cover between plaintiffs’
property and Ryder’s farming operation. Hahn admitted that he had not visited the property before
the damage was done, and was relying on plaintiffs’ representations as to what the property had
been like before the damage.
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On December 2, 2022, the damages hearing continued with plaintiff Stanley Simmons
testifying that he wanted to have his property resurveyed to get an accurate drawing and
description, and he wanted to reestablish his fence line and wooded area, which would require
excavation and landscaping. Stanley received a quote from Gilbert Barish, the surveyor who
testified at the bench trial, as to the cost of reestablishing his boundary line and the quote was for
$4,350. Stanley testified that he had already paid Barish $2,094.24 to date for his surveying work.
Thus, the total cost to reestablish his boundary line was $6,444. Stanley also obtained a quote
from Bruce Waldron Excavating for remediation excavation work totaling $66,550. He had
previously obtained a quote from Miller Brothers Excavating for remediation work which totaled
$66,414. Stanley also obtained a quote from Twin City Landscape for remediation work totaling
between $30,151 and $42,961. He had previously obtained a quote from Snyder’s Landscape and
Design for remediation work totaling $58,005. Before his property was damaged by Ryder,
Stanley testified, he enjoyed a visual, wind, odor, and noise screen between his residential property
and Ryder’s farming operation. And Stanley’s goal was to provide that cover or screen that was
previously enjoyed between their properties. He and his wife found the wooded portion that was
destroyed to be aesthetically pleasing and that privacy was basically why they had purchased that
property. The fence posts and fence wire that were on his property were also removed by Ryder.
Stanley obtained a quote from Mount Pleasant Fence Sash and Door for the purpose of
reestablishing the fence line between his property and Ryder’s property and it totaled $7,546.74.
Stanley also testified that he had incurred court costs and attorney fees to that date in the amount
of $35,000, which he was seeking to be reimbursed by Ryder. On cross-examination, Stanley was
apprised of a quote for remediation of plaintiffs’ property that Ryder obtained from Merchant
Excavating which totaled $30,750. Stanley testified that he had worked with David Merchant in
the past; he was a competent excavator and did a good job. Stanley would not have a problem
with David doing the remediation work.
Defendant then called David Merchant, who was qualified as an expert witness, and he
owns Merchant Excavating. Ryder obtained an engineered print related to the remediation of
plaintiffs’ property, which were drawings and plans that offered a detailed guide to move the dirt
and put the property back to previous grades and slopes. David’s quote was based on that
engineered print, to “build it to the print,” and totaled $30,750. David had worked with Ryder in
a professional capacity and thought that Ryder was capable of doing this project himself. David
was willing to supervise such a project and would be willing to provide an affidavit to the court in
that regard for an estimated cost of $500.
David further testified that he had told Stanley to get an engineered print, i.e., topographic
survey, and that he would not provide plaintiffs an estimate without a print. David agreed that the
only pile of dirt remaining on plaintiffs’ property was about 200 cubic yards. And he agreed that
subsoil and topsoil would be required to remediate plaintiffs’ property. But he intended to use the
soil that was on site, as well as on Ryder’s property, and so his quote did not include any additional
subsoil or topsoil—the $30,750 was for equipment and labor, as well as probably grass seed.
David knew of Bruce Waldron and had no issues with his work. David agreed that Waldron’s
quote of $12.40 for subsoil and $28.40 for topsoil were good quotes. And Waldron’s quote that
included needing 850 cubic yards of subsoil and 148 yards of topsoil was accurate if he was not
taking dirt from Ryder’s property.
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Defendant Ryder testified that he mistakenly messed up plaintiffs’ property and he wanted
the opportunity to fix it. That is why he commissioned the engineering plans at a cost of about
$2,500 so they could all be on the same page. He did not feel that he should be financially ruined
over an honest mistake. To avoid any remediation, he was willing to purchase plaintiffs’ property.
He knew that David Merchant would be supervising him if he was allowed to remediate plaintiffs’
property himself. And he has all of the equipment necessary at his home to perform that task. He
thought it would take him about two weeks. But Ryder knew that plaintiffs did not want him to
perform the remediation work and they did not want him on their property. Ryder did not believe
the quotes presented by plaintiffs were reasonable, particularly the need for fill material because
he never removed any dirt offsite—he merely moved it around the property. He cut between five
and ten dead ash trees down on the disputed strip of property. The fence that has been referred to
was not really a fence—there were posts and some pieces of wire. So if he had to install a fence
on plaintiffs’ property that would actually be an improvement, not a remediation. Further, he
disagreed with the landscaping estimate because he did not remove that many trees—not even
close. There was some brush but there was a significant portion that had no trees. “They’re asking
for trees to be planted in an area that was standing water before I moved the dirt.” He would be
willing to plant a few trees but not as many as the estimate quoted. Ryder testified that a lot of
plaintiffs’ property had been wet and had gotten wetter over the years. It was not because of
anything he did. He actually tried to improve it so that it was not so wet when he thought it was
his property.
At the conclusion of witness testimony and closing arguments, the trial court rendered its
opinion on plaintiffs’ damages. First, the court reiterated its conclusion that Ryder was liable for
trespass, but the trespass was casual and involuntary, i.e., he had probable cause to believe that the
land on which the trespass was committed was his own. Second, the court referred to the holding
in Schankin, 354 Mich at 492, that generally damages for trespass are measured by the difference
in the value of the land before and after the harm. The court noted that there was no testimony
regarding any difference in the value of the land. But the Schankin Court also stated that there is
no fixed, inflexible rule for determining damages; thus, the trial court turned to the damages
requested by plaintiffs. The court noted that plaintiffs requested $6,444 for a survey, but had
already spent $2,094 and an additional $4,350 was needed to complete the survey. The court held
that the remaining cost of $4,350 to complete the survey would be split between the parties so that
each paid for half, or $2,175. The $2,094 that plaintiffs had already paid was considered “to be a
cost of defending this action,” and would be addressed later in the ruling. But Ryder was also to
pay the cost of recording the appropriate documents with the Register of Deeds associated with
the new survey and ensuring title was quieted in plaintiffs’ favor.
Next, the trial court denied plaintiffs’ request for construction of a fence because what had
been on their property was in a state of extreme disrepair. But the court ordered that the cost of
staking the land by the surveyor be split between the two parties. The court then considered
plaintiffs’ request for excavating services. The court noted that the evidence showed that Ryder
had not removed any of the dirt from the property, it had merely been moved around. Therefore,
the quotes plaintiffs presented that included the hauling in of dirt to plaintiffs’ property were
inappropriate. David Merchant had testified that the dirt that was already on the property was
sufficient to fill in the disputed property. And the court held that Ryder would be given the
opportunity to fix plaintiffs’ property, with David present to supervise the excavation work. David
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must also sign off on the work performed by Ryder, and Ryder must pay any cost associated with
David’s supervision.
The trial court next considered the issue of landscaping as damages and noted that the court
had performed a site visit. The court further noted that, during that site visit in the spring of 2021,
the Ryder property was not visible from plaintiffs’ land. The court also considered photographs
that were admitted as exhibits and concluded that a majority of the property at issue did not contain
a large number of hardwood trees before Ryder’s trespass. Therefore, the quotes presented by
plaintiffs with regard to requested landscaping were designed more to improve the property than
to restore the property to its previous state. The court recalled seeing “scrub trees” or trees that
were embedded in a swampy area in some places and not mature, high quality trees. Accordingly,
the court ordered Ryder to pay, as set forth in the Twin City Landscaping estimate, the cost of
installing 21 arrowwood viburnum trees which was $1,995.
As for plaintiffs’ request for costs and attorney fees, the trial court noted that MCL
600.2591 provides for an award of cost and fees for a frivolous action. However, the court noted
that Ryder reasonably believed the property at issue was his rightful property based on the Tingley
survey. Therefore, the court held, each party was to bear the cost of their own defense and
prosecution of this matter, including their own attorney fees.
On January 19, 2023, the trial court entered an order following the hearing on damages for
civil trespass. The court ordered: (1) a survey to be completed by Gilbert Barish, and the parties
shall each pay $2,175 in that regard; (2) defendant Ryder to pay the recording fee associated with
the survey; (3) defendant Ryder to perform the remedial excavation with plaintiffs’ permission,
under the supervision of David Merchant, and at Ryder’s cost, and within six months of getting
the requisite permission; (4) defendant Ryder to pay the cost of installing 21 Arrowwood
Viburnum trees for a total of $1,995; (5) each party to bear their own costs and attorney fees; and
(6) a money judgment was entered in favor of plaintiffs and against Ryder in the amount of $1,995.
Plaintiffs appeal, arguing that (1) the trial court erred in awarding only $1,995 in
damages—the cost of planting 21 Arrowwood Viburnum trees—when the evidence showed that
Ryder destroyed about one acre of plaintiffs’ mature woods; (2) the trial court erred in permitting
Ryder to perform remedial excavation work instead of awarding damages to plaintiffs for the cost
of that work; and (3) the trial court erred in holding that the parties must split the cost of a remedial
survey and associated field work to reestablish the appropriate boundary line required to correct
the errors created by the Tingley survey.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews a trial court’s findings of fact in a bench trial for clear error and its
conclusions of law de novo. MCR 2.613(C); Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d
900 (2007). A trial court’s determination of damages following a bench trial is also reviewed for
clear error. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 513; 667 NW2d 379 (2003).
Clear error exists where, after reviewing the entire record, the reviewing court is left with a firm
and definite conviction that a mistake has been made. Walters v Snyder, 239 Mich App 453, 456;
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608 NW2d 97 (2000). But to the extent that the proper measure of damages involves a question
of law, our review is de novo. See 2000 Baum Family Trust v Babel, 488 Mich 136, 143; 793
NW2d 633 (2010); see also MCL 600.2919(1). This Court is deferential to the trial court’s special
opportunity to judge the credibility of the witnesses. MCR 2.613(C); Smith v Straughn, 331 Mich
App 209, 215; 952 NW2d 521 (2020).
B. APPLICABLE LAW
MCL 600.2919(1) provides:
Any person who:
(a) cuts down or carries off any wood, underwood, trees, or timber or despoils or
injures any trees on another’s lands, or
(b) digs up or carries away stone, ore, gravel, clay, sand, turf, or mould or any root,
fruit, or plant from another’s lands, or
(c) cuts down or carries away any grass, hay, or any kind of grain from another’s
lands
without permission of the owner of the lands . . . is liable to the owner of the land .
. . for 3 times the amount of actual damages. If upon the trial of an action under
this provision or any other action for trespass on lands it appears that the trespass
was casual and involuntary, or that the defendant had probable cause to believe that
the land on which the trespass was committed was his own . . . judgment shall be
given for the amount of single damages only.
In this case, plaintiffs prevailed in their action to quiet title brought under MCL 600.2932, and
thus, were entitled to seek damages for injury to their land under MCL 600.2919(1). But the trial
court concluded that Ryder’s trespass was casual and involuntary, and that he had probable cause
to believe the land at issue was his own based on the Tingley survey; therefore, plaintiffs were
only entitled to single damages and not treble damages. That holding has not been challenged on
appeal. However, plaintiffs challenge the damages awarded thus we turn to the law on the issue
of damages under these circumstances.
It is a well-established principle of law that a plaintiff asserting a claim “has the burden of
proving damages with reasonable certainty, and damages predicated on speculation and conjecture
are not recoverable. Damages, however, are not speculative simply because they cannot be
ascertained with mathematical precision.” Health Call of Detroit v Atrium Home & Health Care
Servs, Inc, 268 Mich App 83, 96; 706 NW2d 843 (2005) (citation omitted). “It is sufficient if a
reasonable basis for computation exists, although the result be only approximate.” Berrios v Miles,
Inc, 226 Mich App 470, 478; 574 NW2d 677 (1998).
In the case of trespass and injury to land, our Supreme Court in Kratze v Independent Order
of Oddfellows, Garden City Lodge No 11, 442 Mich 136, 149; 500 NW2d 115 (1993), stated:
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Where the wrong consists of a trespass to property resulting in an injury to
the land, the general measure of damages is the diminution in value of the property
if the injury is permanent or irreparable. If the injury is reparable, or temporary,
the proper measure of damages is the cost of restoration of the property to its
original condition, if less than the value of the property before the injury. The rule
is, however, flexible in its application. The ultimate goal is compensation for the
harm or damage done. Thus, whatever method is most appropriate to compensate
a plaintiff for the loss may be used. [Id. (citations and footnote omitted).]
In other words, there are two methods that may be used to determine damages for the injury to
land: the injured party may seek compensation for the lost market value of the land, i.e., the
diminution in value method, or the injured party may seek the cost of restoration of the land, i.e.,
the restoration method. That is so because, while the property’s value may not have been
diminished by the injury (and may actually have been enhanced), that property may have had a
unique value to its owner that was negatively impacted. For example, the property may have been
purchased or particularly enjoyed because of the beauty of its trees that were wrongfully cut down.
Consequently, our Supreme Court in Schankin v Buskirk, 354 Mich 490, 494; 93 NW2d
293 (1958), had previously recognized that “there is no fixed, inflexible rule for determining, with
mathematical certainty, what sum shall compensate for the invasion of the interests of the owner.
Whatever approach is most appropriate to compensate him for his loss in the particular case should
be adopted.” Likewise, in Thiele v Detroit Edison Co, 184 Mich App 542, 545; 458 NW2d 655(1990), this Court had also noted that “courts should apply whatever approach is more appropriate
to compensate the plaintiff for the losses incurred based on the facts of the individual case,” and
concluded in that case that the “loss of aesthetic value, the actual monetary value of the trees lost
and the cost of their replacement constitute[d] evidence of the diminution in value of the freehold
estate.” However, as this Court noted in Szymanski v Brown, 221 Mich App 423; 562 NW2d 212(1997), while it is permissible to apply the restoration method of computing damages to which the
injured party is entitled, those damages “must not exceed the value of the property before the
injury.” Id. at 430-431, citing Kratze, 442 Mich at 149. Therefore, in Szymanski the defendant—
who had “destroyed more than five hundred mature trees, removed topsoil, and otherwise scarred
the earth”—was entitled to remittitur in the amount of $9,500 because the jury’s award of $37,000
exceeded the market value of the property, which was $27,500. Id. at 426, 431-432.
C. APPLICATION OF LAW TO THE FACTS
Plaintiffs argue on appeal that the trial court erred in awarding only $1,995 in damages—
the cost of 21 arrowwood viburnum trees—when the evidence demonstrated that Ryder excavated
and destroyed about one acre of plaintiffs’ mature woods. We disagree.
Plaintiffs assert that they presented evidence substantiating their request for damages in the
range of $151,355 to $200,145, which included remedial excavation and landscaping, a survey,
new fencing, and attorney fees and costs. Nevertheless, plaintiffs argue, the trial court only
awarded the cost of installing 21 arrowwood viburnum trees—which was $1,995.
As the trial court noted, plaintiffs did not present any evidence as to the diminution in value
of their property resulting from Ryder’s actions. In other words, plaintiffs did not seek damages
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for the lost market value of their land. No evidence was presented in that regard. Rather, plaintiffs
sought damages for the cost of restoration of their property as evidenced by the estimates for
remedial excavation and landscaping submitted, as well as witness testimony in support of those
estimates and plaintiffs’ loss. However, as our Supreme Court held in Kratze, “the proper measure
of damages is the cost of restoration of the property to its original condition, if less than the value
of the property before the injury.” Kratze, 442 Mich at 149 (emphasis added); see also Szymanski,
221 Mich App at 430-431. Plaintiffs did not present any evidence as to “the value of the property
before the injury.” But in the bench trial, Douglas Merchant, the assessor and supervisor of
Arcadia Township, testified that the value of agricultural property in 2022 was about $5,450 an
acre and a residential wooded lot was about $3,500 to $3,800 an acre. The property that was
allegedly damaged by Ryder’s actions was a 31-foot-wide strip of land that amounted to a bit less
than one acre of land. Accordingly, plaintiffs could not have been entitled to the amount of
restoration damages they sought, as set forth in their memorandum of law submitted before the
evidentiary hearing on damages, i.e., excavation work totaling between $66,414 to $81,550, and
landscaping work totaling between $30,151 to $58,005. The value of the disputed property, at
most, was about $5,450, according to the record evidence.
Further, with regard to plaintiffs’ landscaping estimate, plaintiffs failed to present evidence
as to the number, types, sizes, and condition of trees that Ryder removed from their property—
despite claims that a “mature woods” was cut down. Plaintiffs’ landscaping expert, Hahn, admitted
that he had never been to plaintiffs’ property before the damage had occurred, and thus, he was
relying on plaintiffs’ representations as to what had been on the property. And Hahn did not testify
that he saw a large number of stumps from mature trees having been cut down on the property,
i.e., evidence that an acre of mature woods was cut down as plaintiffs had claimed. Waldron,
plaintiffs’ excavation expert, also did not testify that he saw evidence that an acre of mature woods
was cut down on the property. Ryder admitted to cutting down between five and ten dead ash
trees, removing thick underbrush, and moving dirt from high to low spots because some of the
disputed property was low-lying and very wet. The trial court noted that, at its site visit to the
property, “scrub trees” or trees that were located in swampy areas—and not mature or high-quality
trees—were seen on plaintiffs’ property. And the photographs that had been admitted as exhibits,
the court noted, also showed that a majority of the property at issue did not contain a large number
of hardwood trees before Ryder’s actions. Moreover, while plaintiffs had testified that they could
see into Ryder’s property because of the number of trees that he had cut down, the trial court noted
that—at its site visit—Ryder’s property could not be seen from plaintiffs’ property. In summary,
plaintiffs failed to prove, with reasonable certainty, entitlement to damages for about an acre of
“mature woods” that was allegedly cut down. See Health Call of Detroit, 268 Mich App at 96.
And, with regard to plaintiffs’ excavating estimate—particularly as to the expense of
subsoil and topsoil, plaintiffs’ excavation expert, Waldron, admitted that he had never been to
plaintiffs’ property before the damage had occurred and was relying on plaintiffs’ representations
as to the grade, slopes, and elevations of the property. Ryder admitted to moving dirt from high
to low spots because some of the disputed property was low-lying and very wet, but he testified
that no dirt was removed offsite. And Ryder commissioned a topographic survey at a cost of about
$2,500 so that there would be a detailed guide to restore the disputed property back to previous
grades and slopes. David Merchant testified that, while subsoil and topsoil would be required to
remediate plaintiffs’ property, it existed onsite—either on the disputed property or on Ryder’s
property—and would be a sufficient amount to complete the work. Plaintiffs presented no
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evidence to suggest that Ryder removed the dirt to another location inaccessible for remediation
work.
Considering the record evidence, we cannot conclude that the trial court clearly erred in
holding that plaintiffs’ excavation estimate was inaccurate for including the cost of hauling in
topsoil and subsoil—over $50,000. Further, we cannot conclude that the trial court clearly erred
in holding that plaintiffs were entitled to the cost of 21 arrowwood viburnum trees, which was
$1,995, in damages for restoration of the property at issue. Plaintiffs request for damages in the
amount of more than $66,000 for remedial excavation work and up to almost $60,000 for remedial
landscaping work was unsupported by the record evidence and far exceeded the value of the
property according to the record evidence.
We also reject plaintiffs’ argument that Ryder should not be permitted to perform the
excavation work, as ordered by the trial court. While this remedy is a bit unconventional, it appears
to be the best solution under the circumstances presented in this case. The record evidence
demonstrated that Ryder has both the equipment and expertise to perform the remediation work.
But to confirm that the work is done properly, the court ordered that excavation expert, David
Merchant, whom both parties know, supervise and sign off on the remediation work performed by
Ryder. And to ensure that plaintiffs’ property is restored properly, Ryder has the topographic
survey, which provides a detailed guide to put plaintiffs’ property back to previous grades and
slopes. David Merchant testified that his quoted estimate to conform to that topographic survey,
or to “build to the print,” totaled $30,750—and that was for equipment and labor, only. Ryder
would be providing that equipment and labor free of charge and under the direct supervision of an
expert excavator, at Ryder’s cost, who must report to the trial court that the work was done
properly. And, again, the damages that could be awarded to plaintiffs for the restoration of their
property cannot exceed the value of that property before the injury. See Kratze, 442 Mich at 149;
Szymanski, 221 Mich App at 430-431. Consequently, not only would Ryder’s excavation work in
remediation of this property be the most cost effective, it is the only manner by which the property
could be fully remediated through this litigation under the facts of this case considering the
constraints of the applicable damages law. Of course, plaintiffs may choose to decline this award
by the trial court and do nothing or arrange for remediation at their own cost. Therefore, under the
circumstances presented in this case, we cannot conclude that the trial court clearly erred by
ordering Ryder to perform the remediation work on plaintiffs’ property under the supervision of
David Merchant.
Finally, plaintiffs argue that the trial court erred in holding that the parties must split the
cost of a remedial survey and associated field work to reestablish the appropriate boundary line
required to correct the errors created by the Tingley survey. We disagree.
The trial court’s decision to split the cost of a remedial survey between the parties arises
more directly from plaintiffs’ action to quiet title brought under MCL 600.2932(1), and not from
their trespass action brought under MCL 600.2919(1) for damage to plaintiffs’ land. An action to
quiet title is equitable in nature. MCL 600.2932(5). And here, as in the Kratze case, the expense
to be incurred for the cost of a remedial survey was not caused by Ryder’s trespass; rather, it was
caused by the erroneous Tingley survey which was drafted by William Tingley. See Kratze, 442
Mich at 152. Defendant Ryder was no more at fault for the erroneous survey than plaintiffs—both
were innocent parties in this regard. Although Ryder hired Tingley—who had been a surveyor
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since 1970—to conduct the survey, there was no evidence that Ryder had any involvement in the
manner or methods Tingley employed in that regard. Under these circumstances we cannot
conclude that the trial court clearly erred in holding that the parties must split the cost to reestablish
the appropriate boundary between their properties. “A trial court must be accorded considerable
latitude in fashioning remedies commensurate with the equities of the case.” Governale v City of
Owosso, 59 Mich App 756, 762; 229 NW2d 918 (1975).2
In summary, it appears that the trial court was fully aware of the issues presented in this
case, correctly applied the law, and awarded damages consistent with the record evidence. See
Alan Custom Homes, Inc, 256 Mich App at 516 (citation omitted). Accordingly, we affirm the
trial court’s decision.
Affirmed.
/s/ Anica Letica
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle
2
Cases decided before November 1, 1990 are not binding precedent but they may be considered
persuasive authority. In re Stillwell Trust, 299 Mich App 289, 298-299 n 1; 829 NW2d 353 (2012),
citing MCR 7.215(J)(1).
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