Kratze v. Independent Order Of Oddfellows, Garden City Lodge No.

11 500 N.W.2d 115 (1993)

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Nature of the Case

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Facts

Lodge No. 11 (D) owned Lots 2911 and 2912 and erected its meeting hall. Kratze (P) entered into an option agreement to purchase Lots 2901 to 2910. That property is adjacent to and abuts the property owned by D. P gave a deposit of $1,000 and agreed to purchase the property for $18,000. He intended to erect multiple-unit dwellings on the property. A 'schematic' of P's property that showed the northeast corner of the building owned by D touching P's property line. A short time later, P learned, as a result of the second survey, that the northeast corner of the building owned by D encroached 1.2 feet onto his property. Nevertheless, P purchased the property for $18,000 as agreed. As a result of the encroachment, P was unable to secure title insurance and, without title insurance, to secure financing for his project. P filed the instant action seeking damages resulting from the encroachment. The court ordered the encroachment removed and found D and the Grand Lodge jointly and severally liable for damages totaling $797,215.46, exclusive of costs and interest. The Court of Appeals affirmed the injunction and reversed all but $10,200 of the $797,215.46 damages award. The Court concluded that the correct measure of damages was the actual damage incurred that includes the difference between the value of the land before the harm and the value after the harm, or where appropriate, the cost of restoration that has been or may be reasonably incurred, and the value of the lost use of the land and discomfort and annoyance to the landowner ... and reflect adherence to the long-established rule that 'where a party commits a trespass he must be held to contemplate all the damages which may legitimately follow from his illegal act. The Court of Appeals remanded the case for a new trial with respect to damages and specifically affirmed the trial court's award of the cost of the second survey and costs incurred in connection with P's employees' attempts to resolve the encroachment. Both parties appealed.