TIME OF VALUATION [Gilbert 104]

TIME OF VALUATION [Gilbert 104]

1. HIGHEST VALUE UNTIL TIME OF TRIAL. Court will often award if there is a showing of bad faith.

   1. HIGHEST VALUE WITHIN A REASONABLE TIME of the wrong or of when P learned of the wrong.(N.Y. Rule) Majority rule:

   2. TIME OF THE ACTUAL INJURY. TRADITIONAL RULE: Not very workable. Timing of when things happen is often accidental.

   3. IRVING PULP V. DUNBAR TRANSFER

   4. ROXAS V. MARCOS: c/a for Conversion (Took something that doesn’t belong to them with intent to deprive them of it permanently). Fluctuating value commodity. Normal measure of damages is FMV at the time of the conversion. New York Rule used: Time P learned of conversion to a reasonable time later. Latest date is the close of evidence. Doesn’t include the time of the conversion to the time P learned of conversion, because if P didn’t know during this time, then he wouldn’t have sold. Reasonable time = time necessary to purchase replacement property.

7. INJURIES TO REAL PROPERTY (Tortious destruction or injury to realty)

1. Permanent injury GENERAL MEASURE: DIMINUTION IN VALUE (DIFFERENCE BETWEEN THE MARKET VALUE BEFORE AND AFTER THE INJURY.

1. EXAMPLES

1. SUBMERGED (never going to be uncovered, permanent)

   1. EXCAVATED

1. TEMPORARY INJURY DAMAGES

1. USUAL MEASURE IS MEASURE IS THE COST OF REPAIR + LOST USE

1. Greater chance of getting this if you actually plan to repair or have already repaired by the time of trial.

1. ALTERNATIVE IS IMPAIRED RENTAL VALUE

2. LIMIT: FMV OF THE PROPERTY

1. Exception to limitation if there is a personal reason to repair, such as personal residence.

1. CASES

1. MILLER V. CUDAHY CO.Trespass. Salt escaped and got into the aquifer under P’s land. Court looks at temporary vs. permanent. Court picks temporary because the salt had stopped escaping and aquifer will eventually become clean again, although it will take 150 – 400 years, but clean up could be accelerated to clean it faster. Discuss causative factor.

   1. GENERAL OUTDOOR ADVERTISING V. LASALLE REALTY. DEFENDANT ARGUED THAT THE PLAINTIFF WAS GOING TO DEMOLISH THE BUILDING AND SO THE DIMINISHED VALUE IS THE APPROPRIATE REMEDY. COURT DISAGREED SAYING THE DAMAGE WAS TEMPORARY AND AWARDED THE COST TO REPAIR. In modern law, P may only get impaired rental value in this situation if D can prove that P is going to tear down the building and P will just pocket the money and get a windfall.

   2. ARCHDIOCESE OF NEW ORLEANS V. LOUISIANA GAS SERVICE. Archdiocese leased an apartment building from HUD to help provide lower income housing to 200 poor families. After 15 years, P would get a fee interest in the property, but a fire occurred within the first 5 years of the lease. Temporary injury, only involving structures, not land . P wants Cost to repair: $236K = more than the value of P’s lease. D wants damages limited to cost to restore the property to the pre-fire condition less depreciation. Court allows testimony about the youth. Says there is not just a financial interest, but also helping people. By the time of trial, P had already repaired the building and the court wasn’t worried about them pocketing the money, so it was easier to award them the repair costs they had already spent.

1. ENCROACHMENT [Gilbert 120]

1. Jurisdictions vary as to whether it is a continuing trespass or a permanent invasion. Affects S.O.L.

   1. Remedies:

1. Ejectment: usually not enforceable, so inadequate

   1. Self-help: may work for tree branches

   2. Injunction: if money damages are inadequate. But hardships must balance in P’s favor. However, the court won’t balance the hardships if it was a deliberate encroachment. P must also defeat laches and public interest defenses. Public instrumentality cannot get injunctive relief because they have eminent domain power.

1. Trespass not involving severance [Gilbert 126]

1. Such as debri dumped on P’s lot

1. Rental Value

   1. Cost of removal, but cannot exceed value of the property

   2. Injunction: mandatory injunction ordering D to remove (Wheelock v. Noonan)

1. Simple trespass, such as abortion protestors [Gilbert 128]

1. Nominal damages

   1. Consequential damages: may be recoverable

   2. Punitive damages: may be recovered where landowner protested the trespass.

   3. Injunctions: where damages are inadequate

   4. Restitution: for value of trespasser’s use.

1. Private Nuisance: an unreasonable interference with P’s reasonable use and enjoyment of her land. [Gilbert 133]

1. Court determines whether a tort exists by weighing the interests of competing landowners (different from balancing hardships)

   1. Recovery for past invasions:

1. Value of loss of use and enjoyment of the property

   1. Costs incurred in trying to abate the nuisance

   2. Personal discomfort and annoyance

1. Permanent nuisance

1. Recovery for past invasions + permanent diminution in value of property.

   1. Permanent depends on possibility of abatement, not the likelihood.

   2. Injunction possible prohibiting continuing activities.

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