Suit is fоr damages for removal of topsoil from plaintiffs’ lot. Defendant appeals from judgment for plaintiffs entered on jury verdict.
Defendant was manager of a construction company which had developed a new subdivision for housing. Plaintiffs purchased onе of the lots from the company which contracted to construct a house on it for them at a price of $13,600 for the house and lot. The subdivision had been accepted for financing by the Federal housing administration which had included among its requirements’ a “block” grading plan. Plaintiffs did not finance through the Federal housing administration and it does not appear that they had knowledge of thе company’s commitment to that administration with respect to the grading plan.
When the house was completed plaintiffs movеd in and paid the full price, except for $350 which *386 was placed in escrow to guarantee the company’s complеtion of the outside work, including sidewalks, driveway, porch steps and grading up the lawn. Thereafter, defendant caused earth-moving machinery to enter upon plaintiffs’ property and to remove, as plaintiffs claim, 544 cubic yards of earth and to placе it on other lots in the subdivision. When this operation began, plaintiffs objected and protested to defendant and did so again before it was completed. Despite their objections, the removal continued.
In his opening statement counsel for plaintiffs sаid that their testimony would show, as one of ■plaintiffs and their expert witness, a landscaper, subsequently did testify, that it would cost $1,250 to replace the soil and restore the lot to its former condition.' There was no other testimony or proof of damages. Although plаintiffs, in their declaration and their counsel’s opening statement, claimed the right to recover for mental anguish and for loss of use and enjoyment of a portion of their prop■erty, at trial plaintiffs’ counsel, upon objection thereto on the ground thаt these did not constitute ■proper elements of damage, withdrew his question to one of plaintiffs with respect to such damagеs and conceded that the objection thereto was proper.
The court instructed the jury that they might return 1 of 3 verdicts, namely, vеrdict for plaintiffs ■based upon a finding of willful and wantoii trespass, verdict for plaintiffs based upon a finding of casual and involuntary • tresрass, or verdict of no cause for action in favor of defendant. The jury returned a verdict for plaintiffs in the amount of $2,000, finding expressly that the defendant had been guilty of ■willful-and wanton trespass. Applying the treble damages provisions of CL 1948, § 692.451 (Stat Ann § 27.2161)’, the court’ entered judgment for $6,000 plus costs. • '
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On appeal defendant contends that the- provisions of the mentioned statute for trebling damages are nоt applicable here because there was no evidence which would permit the jury to find, as it did, a willful and wanton trespass and that such punitive damages may be included in the judgment only when it is established that defendant’s trespass was committed with willfulness, malice or evil design and intent to cause damage. In this connection, Michigan trespass cases cited are
Allison
v.
Chandler,
Defendant relies on Miller v. Wykoff, supra, as authority for the proposition that the measure of damages in a case such as this must he the difference in value of thе freehold before and after the trespass. Because there was no testimony concerning the value of the proрerty either before or after the •trespass, defendant insists that there was no basis for determining the amount of the loss of value of the freehold and that, accordingly, the verdict could not properly have been for more than nominal damages. We think it сonsistent with Miller v. Wykoff, however, to hold that proofs that it would cost $1,250 to restore the lot to.its condition before the trespass constitutеd evidence from which the jury might make a determination of the loss to the freehold.
Defendant says that the verdict for $2,000 was against the great weight of the evidence and that there was no evidence or proof to support a verdict in excess of the sum of $1,250. The record bears out this contention. Accordingly, the judgment must be reversed and new trial granted unless plaintiff shall, within 30 days after filing of this opinion,- file a remittitur of $2,250: but, upon filing of such remit *389 titur, judgment for plaintiff will stand affirmed in the amount of $3,750. No costs.
Notes
OL 1948, § 692.451 (Stat Ann § 27.2161):
“Any person who shall cut down or carry off, any wood, under-wood, trees or timber, or shall girdle or otherwise despoil or injure any trees on the land of any other person, or shall dig up or carry away any stone, ore, gravel, clаy, sand, .turf, or mould from such land, or any roots, fruit or plant there being, or cut down or carry away any grass, hay, or any kind of grain standing, growing or bеing on such land, without the leave of the owner thereof, or on the lands or commons of any city, township, village or other cоrporations without license therefor given, shall be liable to the owner of such land, or to such corporation, in 3 times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law.”