Brereton v. Dixon , 20 Utah 2d 64 ( 1967 )

TUCKETT, Justice

(dissenting):

I dissent. It appears that the majority opinion adopts a special rule of damages', in the case of fruit trees which is followed by a minority of the jurisdictions in this country. The majority of the cases hold that the proper measure of damages for the destruction of or injury to fruit and other productive trees is the difference in the value of the land with the trees before and after the act complained of. It appears to the writer that this rule is more easily understood and is more easily applied than the one we have adopted in this case.¹

The plaintiff in this case established the value of the trees destroyed and his damages by the testimony of witnesses who based their estimates of the value of the trees destroyed upon the factors of the longevity of the trees; the estimated productiveness of the trees; the price of the fruit on the market; less the costs of production. It is my opinion that damages based upon these factors are highly speculative and that a verdict based upon this type of speculation should not be approved.²

HENRIOD, J., concurs in the dissenting opinion of TUCKETT, J.

1 . 69 A.L.R.2d 1365.

2 . Missouri Pac. Ry. Co. v. Haynes, 1 Kan. App. 586, 42 P. 259, 261; Ozark Orchard Co. v. Kansas City Southern Ry. Co., 173 Mo.App. 450, 158 S.W. 884.