Heninger

Appellants David and Eliza Heninger sued respondents Bernard and Elise Dunn for an injunction and damages for trespass. After a nonjury trial the court granted injunctive relief as prayed, but denied any award of damages. The appeal challenges the judgment insofar as it denied damages.

In April 1971 respondents, who owned mountain land adjoining land owned by appellants, bulldozed a rough road, approximately seven-tenths of a mile long, on appellants’ land. Respondents acted despite appellants’ objections, relying on the advice of an attorney who had erroneously told respondents that they held a valid easement permitting the cutting of the road. The bulldozing killed or damaged 225 trees, and destroyed much vegetative undergrowth, but the road provided additional access to appellants’ property, thereby increasing its market value $5,000—from $179,000 just before the trespass to $184,000 immediately following the trespass.

The trial court found that it was technically possible to replace the dead or dying trees, at a cost of $221,647, and that vegetative undergrowth could be restored at a cost of $19,610. But the court denied damages because there was no depreciation in…