Restitution Damage to Real Estate

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In an earlier episode, we discussed restoration damages.

Sometimes restoration damages are inadequate.

Sometimes restitution damages are a better measure of damages.

This scenario may help explain the two types of damages.

Suppose a neighbor negligently started a fire and lost his own barn in the fire and decided to use a farmer’s next-door barn for storage because the farmer was out of town.

The neighbor trespasses when he uses the farmer’s barn for storage because he does not ask permission. The neighbor saves $50,000 in storage fees he would have had to pay to a storage company by using the farmer’s barn without permission.

Restitution damages permit the farmer to recover a measure of damages based upon the value the wrongdoer obtained through his improper use of the property.

Let’s change up the scenario even more.

Suppose the trespasser exploded dynamite on the farmer’s property to test the internal structure of the land to ascertain the presence of oil.

The farmer, in that case, would be entitled to damages based upon the amount that would be fair to charge as a license fee for permitting someone to explode dynamite on the farmers property.

Restitution allows recovery to be measured by gain or unjust enrichment to the defendant. Unjust enrichment to a defendant may be profits or saved expenses from using the plaintiff’s land.

The modern trend allows a landowner to recover in restitution for trespassing on real property.

Where the trespass causes no monetary loss to the landowner, damages may be measured by the gain to the trespasser.

In our scenario where the barn was sitting empty and was used without permission by the neighbor, the benefit gained by the trespassing neighbor is the most appropriate measure of damages.

One of the most famous cases in this area of the law involved a Kentucky landowner. The landowner discovered a cave underneath his property.

Given the commercial success of the nearby Mammoth cave, he decided to make the cave a tourist attraction. Twenty years later, a neighboring landowner discovered that a portion of the cave was underneath his land and sought an injunction and an accounting of the profits from cave tours.

The court considered several methods of calculating the damages. Still, it concluded that the benefits, as measured by profits received by the trespasser, were the appropriate measure.

The court rejected the reasonable rental value method because of the principle that a wrongdoer should not be permitted to profit from his wrong.

Because no harm was done to the land, the court also dismissed a damage measure based on harm to the property that would allow the wrongdoer to profit from the trespass with no consequences.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”