CHAMPION INTERNATIONAL CORPORATION, A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLANT,
v.
JAMES A. HUSSEY, APPELLEE
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Champion International's unauthorized timber taking from Hussey's land was properly found liable, but the trial court erred in awarding diminution in property value as damages rather than the fair market value of the timber and reforestation costs.
A property owner whose timber is unlawfully taken may recover the fair market value of the timber and reforestation costs, not the diminution in property value, when those are the damages pleaded and proven.
[1] In an action for unauthorized timber taking, damages are properly measured by the fair market value of the timber and reforestation costs when those theories are pleaded…
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Join FLexlaw to unlock all legal intelligenceChampion International took timber from land owned by James Hussey without authorization. Hussey filed a three-count complaint seeking the fair market…
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PER CURIAM.
The appellant appeals from a final money judgment entered in favor of the appellee following the appellant’s unauthorized taking of timber from land owned by the appellee. Except as to the amount of damages awarded, we affirm the judgment.
We agree with the appellant’s argument that the trial court erred in awarding as damages the diminution in value of the property, rather than the value of the timber. While the diminution in value of the property may be recoverable in appropriate cases, see, e.g., Watson v. Jones, 36 So. 2d 788 (1948); Fiske v. Moczik, 329 So. 2d 35, 37-38 (Fla. 2d DCA1976); in this case the appellee never pled or raised as an issue such a theory of recovery. The appellee filed an amended three count complaint in which he sought as damages the fair market value of the timber and the costs of reforestation. Although the appellee gave limited testimony at trial regarding diminution in value of the property, that testimony was never tied into any prayer for damages on that basis. We thus conclude that the trial court erred in awarding as damages the diminution in the value of the property. Based on the trial testimony, the judge found the fair market value of the timber to be $29,050 and the costs of reforestation to be $16,851. We therefore reverse the damage award and remand for an award of damages in the amount of $45,901, plus interest, see Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985).
Affirmed in part, reversed in part, and remanded.
ALLEN, WOLF and KAHN, JJ., concur.
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Citator
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- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Cleo C. Watson and Nettie Watson v. Jones, 160 Fla. 819 (Fla. 1948)
- Lopez v. State, 329 So. 2d 35 (Fla. 3d DCA 1976)