Defendants Independent Order of Oddfellows, Garden City Lodge No. 11 and Grand Lodge of Michigan, Independent Order of Oddfellows appeal as of right from a judgment entered in the Wayne Circuit Court following a bench trial, under the terms of which defendants are to remove that portion of a building owned by Lodge No. 11 that encroaches upon land belonging to plaintiff and are to pay to plaintiff $797,215.46 in damages suffered as a result of the encroachment. We reverse in part, affirm in part, and remand for a new trial.
Lodge No. 11 purchased Lots 2911 and 2912 of Folker’s Garden City Acres No. 18 in December 1948. Already existing on the lots at the time of their purchase was a building foundation upon which the previous owners had intended to erect a church. Lodge No. 11 instead erected its meeting hall on this foundation.
In September 1985, plaintiff entered into an option agreement to purchase Lots 2901 to 2910 of Folker’s Garden City Acres No. 18. This property is adjacent to and abuts the property owned by Lodge No. 11. Plaintiff 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._
The Garden City Planning Commission approved plaintiff’s site plan on August 28, 1986, as submitted, without knowledge of the encroachment. 2 However, as a result of the encroachment, plaintiff was unable to secure title insurance and, without title insurance, to secure financing for his project.
In July, 1987 plaintiff filed the instant action in the Wayne Circuit Court, seeking damages resulting from the encroachment. Following a one-day bench trial, the court ordered the encroachment removed and found Lodge No. 11 and the Grand Lodge jointly and severally liable for damages totalling $797,215.46, exclusive of costs and interest. The instant appeal followed.
I
Defendants argue that the mere fact that the Grand Lodge holds only a contingent, nonposses
Plaintiff requests that this Court decline consideration of the instant challenge to the trial court’s finding of liability against the Grand Lodge because both defendants, through the same counsel, conceded at trial liability for any damages arising out of the encroachment and because neither defendant raised a challenge at trial to the Grand Lodge’s status as a defendant. We cannot do that which is requested of us.
Defendants conceded on the record, at the beginning of trial, the existence of the encroachment. Nowhere in the record, however, do we find evidence of an intent on the part of defendants to concede that both the Grand Lodge and Lodge No. 11 held a sufficient interest in Lots 2911 and 2912, or the building thereon, to subject the lodges to joint and several liability. In fact, the record evidences a contrary intent. Defense counsel began his closing argument with a challenge to the authority of the trial court to impose liability on the Grand Lodge where the lodge lacked a possessory interest in the encroaching property. This challenge was addressed briefly by the trial court in its findings on the record. Where an issue has been raised before and addressed by the trial court, the issue has been properly preserved for review by this Court.
Providence Hosp v Labor Fund,
We turn now to a discussion of the merits of defendants’ claim. It is a well-established principle of law that all persons who instigate, command, encourage, advise, ratify, or condone the commission of a trespass are cotrespassers and are jointly and severally liable as joint tortfeasors.
Kapson v Kubath,
The general rule is that all who wrongfully contribute to the commission of a trespass or assent to its commission or connive therein, or who benefit by it, or who aid, abet, assist, or advise a trespasser in committing a trespass, are equally liable with one who does the act complained of. It is essential, however, that there be some cooperation and concert of action between them. It is not enough that the defendants were present and together at the time the trespass was committed, and, in order to render liable as joint trespassers those who did not actively participate in the commission of the trespass, it must appear that they did something by way of encouragement, advice, or suggestion which led or helped to lead to the commission of the trespass.
Persons ordering or authorizing an act are jointly liable with those who do it. . . . Where the act is done by one for the benefit of another and afterward ratified by him they are joint trespassers. There is no joint trespass where defendant’s independent acts contributed to the result or where they cooperated to do a lawful act and in doing it some of them committed a trespass. If all participated in all the acts alleged there can be a joint recovery against all.
Lodge No. 11 purchased Lots 2911 and 2912 in its corporate capacity and erected on these lots a structure for its use. Under an agreement between Lodge No. 11 and the Grand Lodge, Lodge No. 11 retains control, possession, and ownership of its real property until such time as it becomes defunct, breaches the organization’s bylaws, or ceases to be a member in good standing. Should any of these eventualities occur, the Grand Lodge assumes possession and ownership of the property of its subordinate lodge and the property is put to other charitable uses. Clearly, the Grand Lodge has no present possessory right or any vested interest in the property owned by Lodge No. 11. Instead, the Grand Lodge holds but a mere contingent interest. MCL 554.13; MSA 26.13;
Silvester v
Snow,
We conclude that the Grand Lodge’s contingent
ii
Lodge No. 11 next argues that reversal is necessary because the trial court employed an incorrect measure of damages. Again, plaintiff requests that we decline consideration of this issue because defendants failed to challenge below the measure advocated by plaintiff and adopted by the trial court.
3
We again decline to do that which is requested of us. Instead, we assay the claimed error to avoid the possibility of a manifestly unjust result being allowed to stand.
Richards v Pierce,
At the outset, we reject the measure of damages championed by Lodge No. 11 as inappropriate for a case of this nature. That measure, the value of the property without the trespass minus the value
Our review of the record discloses that the trial court correctly considered the actual damages suffered by plaintiff in arriving at a judgment amount. Our review of the record also reveals, however, that the trial court allowed recovery for costs that may not be properly characterized as "legitimately” following from the trespass. It also awarded some items of damages in excessive amounts.
Specifically, the trial court erred in awarding plaintiff the purchase price of the property and
The trial court also erred in awarding plaintiff the costs of the project survey, the engineering report, an additional site plan to restart the project, the engineering necessary to revise the site plan and the additional construction plans. These costs were not incurred as a result of the encroachment, but as a result of plaintiff’s own carelessness in rushing to begin his construction project without first undertaking a thorough survey of his property, especially after plaintiff “determined that there could possibly be an encroachment.”
Finally, the trial court erred in awarding plaintiff the value of the lost rental income on the six units over and above the fifty-six units plaintiff will be allowed to build. Lodge No. 11 may not be punished for an error committed by Garden City officials, especially in light of the fact that the project would not have been approved by the planning commission had plaintiff informed the commission of the encroachment.
The court did, however, correctly consider the value of the lost use of the land as a measure of damages. Nevertheless, the court erred in its computation of damages under this measure.
Historically, damages for lost use have included a reasonable rent on the real property encroached upon,
Kruvant v 12-22 Woodland Ave Corp,
138 NJ Super 1;
Here, the court awarded damages for a period beginning before plaintiff purchased and took possession of the property. This was error. It was also error for the trial court to award damages based on injury to improvements to the property not existing at the time of purchase. Accordingly, we vacate the awards for lost rental income and lost appreciation.
In light of the foregoing, we remand the instant action to the trial court for a new trial with respect to damages. The court may properly award plaintiff the cost of the additional survey of the property owned by Lodge No. 11, as well as the costs incurred by plaintiff and his employees in attempting to resolve the instant matter. These damages are to be awarded in addition to those damages awardable under the measure of damages set forth above by this Court.
III
Lodge No. 11 also argues that plaintiff’s failure to mitigate damages should bar plaintiff’s recovery of any damages other than nominal damages. We disagree. The principle of mitigation of damages does not apply in cases involving a continuing trespass.
McCullagh v Goodyear Tire & Rubber Co,
IV
Finally, Lodge No. 11 argues that the equitable doctrine of unclean hands bars the trial court from
In
Stachnik v Winkel,
"[The clean hands maxim] is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of the court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be 'the abettor of iniquity.’ Bein v Heath, 6 How [47 US] 228, 247 [12 L Ed 416 (1848)].”
Lodge No. 11 argues that plaintiffs hands are unclean because he failed to mitigate damages and because he purchased the property with knowledge of the encroachment. As previously noted, plaintiff owed no duty to mitigate and, therefore, his failure to do so cannot establish that he acted with unclean hands. Moreover, whether plaintiff knew of the encroachment before he purchased the property or discovered it afterward is irrelevant. Either way, because Lodge No. 11 failed to assert and establish any legal right to that portion of plaintiff’s property upon which the lodge’s building rested, plaintiff has a legal right to require that the encroachment be removed. See
Arnold v Ellis,
v
In sum, we vacate that portion of the judgment holding the Grand Lodge jointly and severally liable for monetary damages sustained as a result of the trespass. We also vacate the damage award and remand for a new trial on the issue of damages. Damages shall be awarded in a manner consistent with this opinion. Finally, we uphold the order of the trial court requiring the removal of the encroachment.
Affirmed in part, reversed in part, and remanded for a new trial.
Notes
This second survey was done because plaintiff had "determined that there could possibly be an encroachment.”
The planning commission erroneously approved the number of residential units to be housed in plaintiff’s proposed building. The site plan contemplated a structure with sixty-two units. However, density requirements limited the number of units to fifty-six.
Defendants conceded at oral argument that they had failed to challenge below the measure of damages used by the trial court to arrive at the amount of the judgment.