Thorsen v. Johnson

745 P.2d 1243, 69 Utah Adv. Rep. 3, 1987 Utah LEXIS 799
CourtUtah Supreme Court
DecidedNovember 5, 1987
Docket18960
StatusPublished
Cited by8 cases

This text of 745 P.2d 1243 (Thorsen v. Johnson) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thorsen v. Johnson, 745 P.2d 1243, 69 Utah Adv. Rep. 3, 1987 Utah LEXIS 799 (Utah 1987).

Opinions

HOWE, Justice:

This is an appeal from a judgment in favor of Gooseberry Estates, a partnership, against Harry Thorsen and Donald Gates (hereinafter Thorsen) for damages to a proposed real estate development in Sevier County caused when Thorsen dredged an inactive irrigation ditch which coursed through the development.

Thorsen was a downstream user of the irrigation water and contended that he had the right to enter upon Gooseberry’s property for the lawful purpose of cleaning the ditch. Gooseberry contended that the ditch had long been abandoned, that another ditch had been established in another location to carry Thorsen’s water, and that he did the dredging for the sole purpose of preventing the use of Gooseberry’s land for a planned subdivision to which he, as a nearby landowner, was opposed. The case was tried before the court without a jury, and the trial judge made a personal inspection of the property. In entering judgment in favor of Gooseberry, the trial court made findings of fact which are not clear as to whether the court found that the ditch had been abandoned prior to the dredging. However, at the oral argument of this case before this Court, counsel for Gooseberry admitted that the trial court did not find an abandonment and that Thor-sen had an easement through Gooseberry’s land for the ditch.

Nevertheless, in other findings of fact, the court found that the dredging by Thor-sen greatly exceeded the mere cleaning of the ditch and amounted to a substantial widening and deepening of the ditch whereby a large number of trees were uprooted and an excessive amount of earth and rocks were excavated. Specifically, the court found that the ditch “should not have been cleaned or dug up in the manner that it was and if there had been any right at all it would have been merely the right of running a plow through the area, the right merely to handclean the ditch and it would have delivered more water under the circumstances than it will at the present time.” The evidence fully supports the findings of fact and conclusions of the court that Thorsen exceeded and abused his right to enter upon Gooseberry’s land to clean the ditch and that he is liable for damages.

Thorsen further contends that the damages found against him were excessive and based upon an erroneous measure. Although there are exceptions and variations,1 generally the measure of damages [1245]*1245for injury to real property is the difference between the value of the property immediately before and immediately after the injury (often referred to as the “Diminution in Value” rule). Pehrson v. Saderup, 28 Utah 2d 77, 498 P.2d 648 (1972); Brereton v. Dixon, 20 Utah 2d 64, 433 P.2d 3 (1967); 22 Am.Jur.2d Damages § 132. The trial court apparently endeavored to apply this measure of damages when it announced:

The court finds that there were nine lots which were totally destroyed, and the court sets the value of $6,000 per lot and in its present condition and not being improved based upon the work up to that time; the plaintiffs are awarded a judgment of $54,000. That’s based upon $6,000 per lot for the nine lots.

This analysis is flawed in two respects. There was no evidence that the “lots” had a fair market value of $6,000 before Thor-sen enlarged the ditch, and there was no evidence that the ditch totally destroyed nine “lots.” The following factual background is helpful to an understanding of why the trial court erred.

On May 14, 1979, Gooseberry entered into a contract with Bryce Johnson to purchase from him 94.47 acres of land for a total of $66,750 or $706.57 per acre. Johnson had acquired the 94.47 acres on July 30, 1978, for the same price. Gooseberry contemplated subdividing 50.59 acres of that tract into a development of thirty-three lots, containing 1.53 acres per lot.

During the seventeen months which elapsed from May 14, 1979, when Gooseberry purchased the land, to October of 1980, when Thorsen damaged the land, no improvements were placed upon the property by Gooseberry. A preliminary subdivision plat was prepared, but a final plat had not been approved or recorded. Gooseberry expended $8,400 for surveying, mapping, and platting. It also expended $7,100 in an attempt to drill a well to provide culinary water for the lots. Adequate water was not found. At the time of trial, Gooseberry still owed $16,000 on the purchase of the property. Gooseberry put on testimony that the projected cost of the improvements was $171,125, but this did not include a central sewage system which the county later required.

The $6,000-per-lot damage found by the lower court was apparently based on testimony given by an appraiser, Kenneth Esp-lín, that if and when the subdivision was approved and recorded, water was made available, and the improvements were in place, the lots should sell for $12,000 each. He opined that ten of the proposed lots were damaged so as to reduce their potential value by 50 percent, or to $6,000 each. Esplín admitted that he was not very familiar with the market for mountain lots in Sevier County where the property was located. He based his opinion on sales made in the Cedar City and Fairview areas in other counties. Counsel for Thorsen repeatedly objected to Esplin’s testimony on the grounds that it was speculative, conjectural, and irrelevant.

The difficulty with Esplin’s testimony, and the court’s judgment which was based upon it, is that at the time Thorsen inflicted damage upon the realty, the property was in a pristine state exactly the same as when it had been purchased seventeen months earlier. It is true that Gooseberry had expended $15,500 in preparations to improve it with the expectation that some day it would become a subdivision of mountain lots. However, before this expectation could be realized, Gooseberry would have to finish paying for the land, develop a culinary water supply approved by the health department, and install a central sewage system. Then, county planning and zoning approval of the final plat, together with approval by the County Commission, would have to be granted. Thereafter, financing for hundreds of thousands of dollars worth of improvements would have to be obtained. When the improve[1246]*1246ments were in place, buyers who were ready and willing to pay $12,000 for each of the thirty-three lots would have to be found.

In viewing Gooseberry’s land as a completed subdivision, Esplin and the trial court lost sight of the fact that the measure of damages is the diminution of the fair market value of the property immediately following the infliction of the damage — not what the property may be worth when and if substantial sums of money are expended to turn it into an improved subdivision. In State v. Tedesco, 4 Utah 2d 248, 291 P.2d 1028 (1956), a condemnation case in which the jury was instructed to find the fair market value of the property, we quoted with approval from Pennsylvania S. V. R. Co. v. Cleary, 125 Pa. 442, 17 A. 468 (1889).

It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted, but it is the tract, and not the lots into which it might be divided, that is to be valued.... The jury are to value the tract of land and that only.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Utah Dep't of Transp. v. Lej Invs. LLC
437 P.3d 569 (Court of Appeals of Utah, 2018)
UDOT v. LEJ Investments
2018 UT App 213 (Court of Appeals of Utah, 2018)
United States v. Garfield County
122 F. Supp. 2d 1201 (D. Utah, 2000)
Strawberry Electric Service District v. Spanish Fork City
918 P.2d 870 (Utah Supreme Court, 1996)
Thorsen v. Johnson
796 P.2d 409 (Court of Appeals of Utah, 1990)
Henderson v. For-Shor Co.
757 P.2d 465 (Court of Appeals of Utah, 1988)
Thorsen v. Johnson
745 P.2d 1243 (Utah Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
745 P.2d 1243, 69 Utah Adv. Rep. 3, 1987 Utah LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorsen-v-johnson-utah-1987.