Weisswasser v. Chernick

252 N.W.2d 766, 399 Mich. 653, 1977 Mich. LEXIS 175

• Court: Michigan Supreme Court
• Decided: May 2, 1977
• Docket: Docket No. 58532
• Status: Published

Opinion

Per Curiam.

Plaintiffs obtained a jury verdict on their complaint against an adjoining property owner for removal of earth and destruction of trees. The Court of Appeals, relying on Padman v Rhodes, 126 Mich 434; 85 NW 1130 (1901), found that the plaintiffs had not discharged their burden of proving the defendants’ acts were without the permission of the owner of the lands and reversed. 68 Mich App 342; 242 NW2d 576 (1976). We disagree.

The Weisswassers, plaintiffs, owned 175 acres of farm land as tenants in common. In early October of 1972, Emanuel Weisswasser went to his farm land and found a bulldozer leveling a hill and moving the earth from the hill onto adjacent land owned by the Chernicks. Trees on the Weisswasser land were razed in the process.

A jury found several defendants liable for trespass and awarded $21,600 in damages. These damages were tripled, under the trespass statute,¹ to $64,800._

Of the eight brothers and sisters who held the property as tenants in common, only one, Emanuel Weisswasser, the tenant in possession, testified. His testimony was that he did not grant consent. Also, circumstantial evidence indicated there was not consent.

The testimony of Emanuel Weisswasser that he did not grant consent coupled with the circumstantial evidence of non-consent was sufficient, in our judgment, to satisfy the plaintiffs’ burden of proof. The defense proofs dealt with minimizing damages.

Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the Court of Appeals and remand the case to that court for consideration of issues raised in that Court but not addressed in its opinion. Costs to plaintiffs.

Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

1 "(1) 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 the 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, or that the wood, trees, or timber taken were taken for the purpose of making or repairing any public road or bridge judgment shall be given for the amount of single damages only.” (Emphasis supplied.) MCLA 600.2919; MSA 27A.2919.