This is an action in trespass to recover damages resulting from the construction and operation of an airport. The primary issue is the sufficiency of the evidence to support the $26,000 verdict awarded the plaintiff by the jury.
This case concerns the same airfield involved in
Rye v. Ciborowski,
The trial сourt found insufficient evidence of a right of pasturage to submit that element of damages to the jury, *565 but charged the jury on the other damages. The jury rеturned a verdict for the plaintiff in the amount of $26,000. The defendant seasonably excepted to the denial of his motion to set aside the verdict, not only on the grounds that it was excessive and unwarranted by the evidence, but also on the grounds that the jury misunderstood both the evidence and the judge’s charge relating to “what damages could lawfully be awarded to the plaintiff”. The defendant also seasonably moved and exceptеd to the court’s denial of his motion “that the verdict.. . shall not bear interest until the date of the verdict.” The Court (Griffith, J., by designation) reserved and transferred аll questions of law raised by defendant’s exceptions of record.
New counsel appeared for the defendant on appeаl. The defendant’s brief urges the setting aside of the verdict on the basis among others of alleged confusing and prejudicial factors relating to the trial atmosphere, including the difference in status of the parties, the conduct of the view, the size of defendant’s estate, and numerous othеr miscellaneous matters. No reason appears to disturb the verdict on these grounds. The issue remaining to be decided is the excessivenеss of the verdict.
Eastman v. Waisman,
Plaintiff Morris’ evidence shows that the defendant Ciborowski needed to create a “clear zone” for his airfield over a portion of plaintiff Morris’ land in order to obtain commercial airport site approval from the New Hampshire Aeronautics Commission. Ciborowski approached Morris several times with offers to buy this land. On at least one occasion, they walked over the property while Morris showed Ciborowski the boundaries, trees transplanted by Morris, and other of Morris’ rights in the land, none of which Morris wished to sell. Morris also walked this area with Cibоrowski’s attorney and was assured by the attorney that if Ciborowski moved onto Morris’ land, Morris would be sufficiently forewarned to seek injunctive relief. Even after this, Ciborowski continually asked and finally demanded that Morris sell him the land. This prompted Morris to again ask Ciborowski’s counsel for advance notice of Ciborowski’s movement on *566 Morris’ land, whereupon Morris found that Ciborowski’s counsel was withdrawing from the case. Finally on November 3,1967, Ciborowski cleаred part of the parcel he had continually tried to buy, destroying or removing shrubs and trees, boundary lines, fences, fouling a brook, and interfering with Morris’ other incidents of ownership.
On this evidence the jury could find not only the usual elements of compensatory damages for this trespass, but also that dеfendant Ciborowski committed this trespass deliberately and that “the act involved is wanton, malicious, or oppressive”, thus allowing the compensatory damages to “reflect the aggravating circumstances.”
Vratsenes v. N.H. Auto, Inc.,
Plaintiff also introduced evidence of the replacement cost of $10,000 for 30 to 40 additional mature trees also destroyed on the land whiсh was cleared. Replacement cost is allowable as a measure of damages instead of the value of the land before аnd after the harm where', as here, there is substantial evidence of the owner’s personal residential and recreational use of the land.
Id.
§ 929 (1) (a), Comment b at 225-26; Annot.,
An additional element of plaintiff’s claim for damages concerns the reduction in the fair market value of the entire Morris residential prоperty caused by low overflights of planes landing and taking off from the airstrip as a result of Ciborowski’s creation of a clear zone ovеr a part of the Morris land. The plaintiff introduced evidence of the interference with the use and enjoyment of his entire residential
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estatе caused by the unreasonable low overflights that occurred since the creation of the clear zone in November of 1967 up until the time of trial. As to overflights that will occur after trial, there was sufficient evidence to project 15 overflights per month by two airplanes in accordance with the zoning variance upheld by this court in
Rye v. Ciborowski,
We are of the opinion that it was sufficiently clear thаt the evidence of diminution in value of the entire property related only to the diminution due to overflights and did not include the damage due to the clearing of the land and the removal of the trees, but was in addition thereto. The trial judge’s denial of defendant’s motion to set aside the verdiсt as excessive constituted a finding of fact which is entitled to great weight.
Falliere v. Filfalt,
After verdict, the trial court denied defendant’s motion that interest on the verdict should run from thе date of the verdict and not the date of the writ. This denial was proper. RSA524:l-b (Supp. 1972) states that in the case of “pecuniary damages ... for damage to property, ... for any other type of loss for which damages are recognized, . ...” interest shall be added from the date of the writ.
Defendant’s exceptions overruled.