IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00112-COA LEWIS MILLER, JR. APPELLANT

v. VICKSBURG MASONIC TEMPLE APPELLEE DATE OF JUDGMENT: 11/07/2017 TRIAL JUDGE: HON. M. JAMES CHANEY JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID M. SESSUMS ATTORNEY FOR APPELLEE: FRANK G. VOLLOR NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: AFFIRMED - 08/13/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BARNES, C.J., FOR THE COURT: ¶1. In 2015, the Vicksburg Masonic Tem ple (“the Lodge” ) f

i l e d a c o mp l a int against Lewis Miller Jr., an adjacent landowner, seeking dam ages to r epair and restore the lateral and subjacent supp o r t o f i t s property

. Af ter a jury trial in W a r

ren County Circuit Court, the Lodge was awarded $200,000 in d am ages. M iller f iled a m o tion f

or a j udgm ent notwithstanding the v erdict (JNOV) or alternatively f or a new trial, which t h e t r i al court denied. Miller appeals the judgm ent, and f inding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. T h e L o d g e o w n s 2.64 a cres of property f ronting C ain Ridge Road in Vicksb u r g , Mississippi. In 1 997, Miller, owner o f R i v e r s i d e C onstruction Com pany , bought the propertyadjacent to the Lodge’s property t o use as f ill dirt f or his construction projects and, potentially , t o develop the property f or com m ercial use. Af

ter talking with Jam es Price, the Lodge’s president and a f

riend, Miller excavated a v ertical cut up to the e dge of the Lodge’s property line and installed a drainage sy stem , including a f ive-f oot-wide drainage ditch, to take care of any w ater runof f f rom the Lodge’s property

. F or saf e ty reasons, he also installed
f encing at the top of

the ditch in accordance with the Lodge’s request. ¶3. The drainage sy stem and d itch w o r k e d w e l l f rom 1997 until 2010, at w hich tim e erosion occurred to the point that c ertain portions of the ditch f ailed, and e x cess water f

lowed

over the top of the ditch. The L odge eventually m oved the f ence because it w as hanging over the eroded soil, p osing a saf ety issue f or its patrons. Af

ter discussions with Lodge m em bers, Miller p ut som e plastic sheeting down, slowing the p rogression of the erosion. In 2013 or 2014, Miller excavated a swale o n the Lodge’s p roperty to direct the water back to Cain Ridge Road. Since that tim e, no f urther erosion has taken place. ¶4. On October 16, 2015, the Lodge brought a s uit against Miller, alleging he was strictly liable f or the costs of restoring its property to s ubstantially the sam e condition bef ore the lateral a nd subjacent support was rem oved. The Lodge requested dam ages in the am ount of $497,366.58—“the cost o f r epairing and restoring t he lateral and subjacent support to [ the Lodge’s] property ”—as well as attorney ’s f ees and court costs. ¶5. A jury trial was held October 31-Novem ber 3, 2017. Price testif

ied that af ter Miller contacted him about excavating the property , he unof f icially consulted with an attorney , who told him Miller had an obligation not to dam age the L odge’s property

. Because M iller was concerned about the excess w ater runof f , Price said he gave Miller p erm i ssion to rework the 2Lodge’s drainage sy stem

. H e said that Miller “built [ the ditch] and m aintained it” and never

m ade a ny representation that it was the Lodge’s responsibility to m aintain the d itch. Miller

never charged the Lodge f or any of the m aintenance that he or his em ploy e es had perf

orm ed over the y ears. ¶6. Johnny Lowrey , the Lodge’s current president, s ai d h e n o t i ced that the d itch was
f ailing in 2011. Because he has a background in construction, Lowrey was a s ked to attend

a Lodge m eeting o n April 16, 2013, to discuss the issue with Miller. He testif ied that, at that

m eeting, Miller presented a plan to build a retaining wall. In 2014, Lowrey and Miller had several d iscussions and d e cided that the Lodge’s downspouts needed to be redirected; so Lowrey closed up the downspouts that Miller had installed. ¶7. Jef f rey B r o o m, a l o c a l contractor, testif ied t hat he provided t he Lodge a bid f or a retaining wall in the am ount of $533,528.98. 1 ¶8. Jim m y Fairchilds Jr., who recorded the m inutes f r o m t h e L o d ge’s April 16, 2013

m eeting, corrobor a t e d L o w rey ’ s testim ony that Miller proposed b uilding a retaining wall. Fairchilds was responsible f or lawn m aintenance at the Lodge f or several y ears and said that
any leaves or debris i n the ditch were f rom trees on Miller’s property a n d that the ditch was not the Lodge’s responsibility

. ¶9. At the close of the Lodge’s case-in-chief , Miller m oved f

or a directed verdict, which the trial court denied. D a v i d Dennis, a geotechnical engineer testif y ing f or Miller as an expert w itness, stated t hat the soil at the Lodge’s p roperty , loess soil, “is cha r a c t eristically

1 In th e co m

p lain t, th e a m o u n t o f d am ag es req u ested w as $ 4 9 7 , 3 6 6 .5 8

. B r o o m rev ised t h e b id am o u n t f

o r th e retain in g w all at trial to ref lect an in crease in m aterial co sts. 3very stable on a near-vertical slope.” But he also n oted t hat l oess soil was “very erodible”

and opined: “The prim ary item which c aused the f ailure of th[ e] ditch is the waterf all ef f ect and the clogging of the ditch which created the w aterf all e f f ect, which i s a m aintenance issue.
It’s a m aintenance i ssue.” Although Dennis acknowledged that he was not testif y ing as to who had responsibility f

or the m aintenance o f the d itch, he did conf irm t hat M iller or one of Miller’s em

ploy ees had cleaned out the ditch in 2010. ¶10. In his written report, the Lodge’s expert witness, J am es May , c oncurred with Dennis, stating that “ [ i]t [ was] t he m aintenance of the drainage structure that [ was] at the heart of the problem .” May contended that “[ i ]t would have been better if the concrete drainage structure

w o u l d n o t h a ve been installed than to install it and not m aintain it.” Although he acknowledged that loess soil would stand a vertical c ut f or y ears, May noted t hat if there was a concentrated f

low of water on the loess soil, “y ou’ve got a problem .” ¶11. Miller said that there were drainage issues w i th the Lodge’s property bef ore he began excavating, claim ing Price told him the area behind the Lodge’s build i n g stay ed wet and asked Miller if

he could d o any

thing about the i ssue. Thus, Miller averred t hat he built the ditch to help the Lodge handle its water-drainage issues; he d id not need t he drainage ditch. Miller did acknowledge that h e p a i d f or the c o st of constructing t he ditch ($30,000 to $50,000). He contended that h e only w arranted the work f or o ne y ear; af

ter that, it was the Lodge’s responsibility to m aintain the ditch. However, Miller’s em p loy ee, W endell Moore, testif i ed that he had gone to the property in 2004 to repair som e cracks i n the ditch. Miller also had him to go t o the property in 2013 to discuss the water drainage issue with Lowrey

. ¶12. On rebuttal, Price adm itted there was a “wet s pot” in the back o f the Lodge’s property 4but denied that h e asked M iller to rem edy the issue. Price reiterated that the d itch belonged

to Miller, not the Lodge. ¶13. The jury awarded the Lodge a verdict of $200,000. Miller f iled a m otion f

or JNOV

or alternatively f

or a new trial, w hich t he trial court d en i e d

. A p p e aling the verdict, Miller contends t hat the L odge f a iled t o prese nt evidence t hat h e breached a ny duty and f ailed to
prove a proper m easure of dam a ges. DISCUSSION ¶14. Miller argues that he did not breach a duty to provide lateral support to the Lodge’s property and that the Lodge f

ailed to prove he was liable f or m aintenance of

the ditch. He
f urther claim s that the only evidence of dam ages presented by the Lodge was the cost to build

a r etaining wall but the Lodge f a iled to prove t hat a retaining wall was n ecessary . Thus, he asserts that there was insuf f i cient evidence to support the jury ’s verdict. ¶15. “The standard of review f or denial of a [ JNOV] a n d a directed verdict are i dentical.” Hopkins v
. Schaeffer , 840 So. 2d 737, 738 (¶6) ( Miss. Ct. App. 2 003). Viewing the evidence
in the light m ost f

avorable to the nonm ovant, if the verdict can be supported by the e vidence, then “neither a directed verdict n or a JNOV is appropriate.” Loyacono v. T ravelers Ins. Co. , 163 So. 3d 932, 935 (¶9) (Miss. 2014). Such m otions are reviewed de novo. Id

. A. Breach of Duty/Negligence ¶16. I n its com

plaint, t he Lodge asserted that d ue to Miller’s rem oval of the l a t e r a l a n d subjacent support of i ts property , Mi l l e r w a s strictly liable f or the d am ages the Lodge suf f e red and “ t h e c osts of restoring the property to s ubstantially t he sam e condition.” In Pecanty v
. Mississippi Southern Bank , 49 So. 3d 114, 1 18 (¶¶17-18) (Miss. C t. App. 2016), 5this Court held:

Under com m on law traditions, “adjoining landowners have a natural right to the lateral s upport of each other’s ground; this p rin c i p l e a pplies only t o l and i n i t s natural state; the duty to provide l ateral support is o ngoing, a nd one o f continued support running against t he servient l and.” 1 Am

. Jur. 2d Adjoining Landowners § 4 4 ( 2005). T he duty i s absolute and is not predicated on negligence. 2 C.J.S. Adjoining Landowners § 8 (2003).
W h ile s uch duty d oes not p reclude the landowner f rom excavating his own land, he “m ust do so in a m a nner that protects adjoining property in i ts n atur a l s t a t e f r o m collapsing or eroding away .” 1 Am

. Jur. 2d Adjoining Landowners § 50 (2016). “In othe r w o r d s , a n adjoining property owner, in excavating on one’s o wn land, who rem oves lateral support to the injury of a neighbor’s land, is liable in an action, t heref ore, w ithout proof of negligence.” Id . at § 51. ¶17. However, M iller a rgues t hat there was no evidence presented that his rem oval of the lateral support caused the erosion. Noting the testim ony by both expert witnesses, Miller

asserts that the loess s oil on the property could w ithstand a vertical cut without the need f or lateral support and t hat it was the lack of m aintenance of

the ditch, which he contends was the Lodge’s responsibility , that caused the erosion issue. ¶18. Generally , questions of p roxim ate cause and negligence are f or the jury to determ ine “under p roper i nstructions o f the court as t o t he applicable p r i n ciples of law involved.” Hankins Lumber Co. v
. Moore , 774 So. 2d 459, 464 (¶11) (Miss. Ct. App. 2000). Breach of duty is also an issue to be d ecided by the f act-f inder “once suf

f icient evidence is presented
in a negligence case.” Id

. In this instance, t h e jury w as instructed on both t heories of liability

. Jury I n struction P-3 inf orm ed the j ury regarding Miller’s absolute duty as an

6adjoining landowner t o provide lateral support. Jury Instruction D-4(A) instructed the jury

that sho u l d it f

i nd the Lodge was responsible f or the m aintenance of the ditch, it was to render a verdict f

or Miller. ¶19. There is no dispute that Miller excavated up to the Lodge’s property line, rem oving the lateral support. The Lodge’s e xpert witness, May , did state that loess soil would “retain

an alm ost vertical cut f

or y ears and y ears,” but he also noted t hat when y ou put an artif icial

structure on top of it, “y ou have to m aintain it or it’s detrim ental. I m ean, it adds weight, and
if it leaks, it’s m ore o f a problem than if y ou had n ever put the s tructure u p there.” Although it was d isputed at t rial whether Miller built the drainage ditch at the Lodge’s request and who

was responsible f

or the ditch’s m aintenance, it was undisputed t hat Miller paid f or the ditch’s
i n s t a llation and provided o ccasional m aintenance to the ditch, indicating som e acceptan c e of responsibility

in that regard. ¶20. A trial court should only grant a m otion f or J NOV “[ i]f the f

a c ts and i nf

erences drawn
f rom th[ e] evidence point s o overwhelm ingly i n f avor of the m ovant that reasonable jurors could not have arrived at a contrary verdict.” Roop v. So. Pharm. Corp. , 188 So. 3d 1179,
1190 (¶39) (Miss. 2016). Viewing the evidence in light m ost f a vorable to the Lodge, we f ind there was suf

f icient evidence to support the jury ’s f i nding that Miller was liable f or the dam age to the Lodge’s property

. 2

2 M ille r a l s o r e mark s th at th e trial co u r t “erred in d en y in g [ h is] req u est f o r a p erem p to ry in stru ctio n ,” b u t h e f ails to id en t if

y th e sp ecif

ic in stru c tio n a n d m ak es n o su b stan tiv e arg u m en t in th is reg a r d

. R eg ard less, as w ith a JN O V , in p assin g o n a req u est f o r p erem p to r y in stru ctio n th e ev id en ce is “v iew e d in th e lig h t m o st f a v o rab le to th e p arty o p p o sed to th e m o tio n , g iv in g th e b en ef it o f a ll th e f

av o ra b l e i n f

e r en ces th at m ay b e reaso n ab ly d raw n f

ro m th e e v id e n ce, an d co n sid erin g an y u n c o n trad icted ev id en ce o f f ered 7B. Damages

¶21. M i l l e r a l s o c l a i ms the Lodge “presented n o evidence as t o the cost to r epair the drainage ditch and/or sy stem , n or any dim inishm e nt to the v alue of its l and, either bef ore or af ter, and presented n o value of the land/dirt actually washed away b y erosion.” Arguing in support of

the m otion f

or a directed verdict, Miller’s attorney stated:
W e show u n to t he Court that the m easure o f dam a g es in a case i n v o lving dam age t o real estate i s either the dim inishm ent o f t he value of the property or the dif f erence between the cost of repairs and the v alue of that property

. In this case, there has b een a total f ailure to prove any value of the property of the Masonic Lodge. There’s no evidence. No scintilla. No e ven attem pt at it. So the Court lacks a proper m easure of dam ages in this case. There’s no evidence of the value of the p l ain t i f f ' s p roperty

. There’s n o evidence of any dim inishm ent of t h e v a l u e of the plaintif f ' s property , a nd on t hat basis the plaintif f has f ailed to establish any

m easure of

dam ages. The Lodge’s attorney , citing Bell v. First Columbus National Bank , 493 So. 2d 964 (Miss. 1986), and Locklear v
. Sellers , 126 So. 3 d 978 (Miss. Ct. A pp. 2013), responded that the Lodge was entitle d t o choose either the dim inution in value o f t he property or the cost of repair (i.e., the r etaining wall cos t ) a n d that Miller bore the burden to p resent evidence of another m easure of dam ages, which he f ailed to do. ¶22. In Bell , af

ter the bank f

oreclosed on t he B ells’ property , the couple sold and rem oved several f ixtures f rom the hom e (appliances, light f ixtures, etc.), r equiring the b ank to repair the dam age and replace t he m issing item s. Bell , 493 So. 2d at 966-67. A j ury awarded the

b y th e m o v in g p arty .” P ickerin g v. In d u stria M a sin a I T ra kto ra ( IM T ) , 7 4 0 S o . 2 d 8 3 6 , 8 4 2 (¶2 3 ) (M iss. 1 9 9 9 ). If th e f acts an d ev id en c e “ p o i n t so o v erw h elm in g l y i n f av o r o f th e m o v an t th at reaso n a

b le m en c o u ld n o t h av e arriv ed at a c o n trary v erd ict, th en th e p erem p to ry in stru ctio n s h o u ld b e g ran ted .” Id

. at 8 4 2 -4 3 (¶2 3 ). C o n clu d in g th at th e trial co u rt d id n o t err in d en y in g M i ller’s m o tio n f o r a d irected v erd ict a n d a JN O V , w e f u rth er f in d n o erro r in an y alleg ed d en ial o f

M iller’s p erem

p to ry in s tru ctio n . 8b a n k $5,350 i n actual dam ages a nd $1,000 in punitive d am ages. I d

. at 967. T h e B e l l s challeng e d t h e dam age a ward on appeal, arguing t hat t he trial court erred by allowing the bank to use repla c em ent cost of the item s as a m easure of the dam a ges. Id

. at 969. The Mississippi Suprem e Court concluded: [ A p]laintif

f can choose to prove either reasonable cost of r eplaceme n t or repairs or diminution in value , and if he proves either of these m easures with reasonable c ertainty , dam ages are all o w a b l e , s o long as the plaintif f will not be unjustly enriched and t he def endant does not d e mo n s t r ate that there is a m ore appropriate m easure of dam a ges.

. . . . In the c ase at bar, the dim inution in value bef ore and af t er the dam age to the property m ay have b een greater than t he cost of repair.

. . . Notwithstanding, we f ind that the ba n k has elected to p roceed upon a r easonable cost of replacem ent and r epair theory

. . . . The ban k chose its rem edy ; there is no u n j ust enrichm e nt to it under these circum stances. The Bells hav e n o t dem onstrated that t h e r e is a m ore appropriate m easure f or m a k ing the bank whole. Id

. at 970 (em

phasis added). Citing B ell , o ur Court l a t e r upheld a dam age award f or restoration c osts i n Locklear , f inding the d e f

endant had f

ailed to show a better m easure of dam ages. Locklear , 126 So. 3d at 981-82 (¶¶9-11). 3 ¶23. In M

orris v. W .R. Fairchild Const. Co. Ltd. , 792 S o. 2d 282, 285 ( ¶12) (Miss. Ct. App. 2001), Fairchild Construction s o ld a portion of its property adjacent t o W .J. Morris’s land to

a third p a r t y . As part of the s ale agreem ent’s term s, Fairchild leveled a portion of the property , creating a sixteen-f oot bluf f next to Morris’s property that soon began to erode. Id

. Although the parties p r o v i d e d appraisals showing loss of value to the land, t his Court

3 T h e d ef en d an t h ad also ad m itted th e p lain tif f s w ere e n titled t o resto ratio n d am ag es in th eir resp o n ses to th e req u ests f o r ad m issio n .

9concluded that the chancellor “applied the correct legal standard in f inding that t he ‘m easure of dam ages f

or the adjoining excavation [ t hat] af f ect[ e d] Morris’s property i s t he c o st to have the property restored to its natural condition to prevent erosion a nd f urther harm ,’” which

was the cost of a retaining wall. Id. at 2 85 (¶15); see also Maslon v. Brown , 148 S o. 3d 27,
31 (¶12) (Miss. Ct. App. 2014) (“W hen the i njury to l and i s tem porary a nd can be restored, the appropriate m easure of dam ages is the cost of r estoration.”) Based on this precedent, we f ind no m e rit to M iller’s argum ent that the L o dge also had to show a dim inution in value to its property

in order to prove dam ages. ¶24. Miller d istinguishes B ell and Loc k l e a r , s t a t i ng those cases c oncern the measure of dam ages, not the necessity of dam ages. “W h e r e costs of repairs are relied upon as the

m easure of dam ages, the proof m ust establish (1) that the repairs were necessary as the result of the wrongf

ul act, and (2) that t h e c o st was r easonable.” Nat’l Fire Ins. Co. o f Hartford v. Slayden , 227 Miss. 285, 290, 85 So. 2d 916, 918 (1956). ¶25. W e f

ind there was suf

f icient evidence presented as t o the n ecessity of the retaining

w a ll. Three Lodge m em

bers testif ied that Miller had suggested a r etaining wall t o f i x t h e erosion issue. According t o Lowrey , Miller cam e to the Lodge m e e ting on April 16, 2013, with a proposal, testif

y ing: Q. He had a plan?
A. And I thought it was a good plan.

. . . . Q. W as that plan ever im plem ented?
A. No, sir. 1 0Q. It never was done?

A. (Shakes head negatively .) Q. Okay . W hat was that plan? W hat was he going to do?
A. D r i l l H

- b e a ms i n t o t h e s o i l b e h i n d t h i s v e r t i c a l s l o p e , t h i s quarter-to-one s lope. In som e instances, y ou would drive pilings—but he has got the f

orethought to know that the driving of the piling could cause f u rther dam age—drill holes a n d set s t eel H-beam s in the concrete increm entally a nd then set slabs of concrete and/or tim b ers, kind o f l ike any of t he other retaining walls y ou s ee, and then back f ill that w ith dirt. Q. Okay . That was the plan?
A. That was what he said he could do [ to it]. Fairchilds also averred that Miller proposed building a retaining wall at that m eeting: Q. And they say that h e proposed—m ade a proposal f or repairs to the bank behind the lodge?
A. Yes, sir. Q. Do y ou rem em

ber that proposal?
A. Yes, sir. Q. W hat was that proposal?
A. H e prom ised u s he was going to start building a retaining wall withi n 60 day s. Q. Did he ever do that?
A. No, sir. Charles “Buddy ” H oward also stated that he was at the m eeting and that Miller said he “was going to put up a wall and prevent any f urther dam age to t he sloughing of f of dirt and such there.” T he Lodge’s m i nutes f rom the m e eting stated that Miller “attended the m eeting and

1 1prese n t e d a proposal f or repair of the bank behind the lodge.” Miller, o n the other hand, denied he m ade any proposal f o r a retaining wall. W hen there is conf l icting evidence, “we d e f e r t o t he jury ’s determ ination of the credibility of witnesses a nd the weight of th e i r testim o ny .” Bass v. Bobo , 980 So. 2d 944, 950 (¶15) (Miss. Ct. App. 2007). ¶26. Furtherm ore, the jury was instructed as to the m easure and the necessity of dam a g es. Jury Instruction P -2 provided in part: “In determ ini n g t h e a mo u n t of dam a g es, if any , to award [ the Lodge, ] y o u s h ould consider i n y our d eterm ination of an award the r easonable

costs to restore t he l a t e r al and subjacent support to the land of p roperty of [ the Lodge.].” Jury I nstruction P-12 stated: “The [ c]ourt instructs the j ury that t he m easure of dam ages relating to property dam age is that which it would cost to restore the la t e r a l and subjacent support to the property .” Finally , Jury Instruction D-21 provided: The C ourt instructs t he Jury that when costs o f repairs are relied upon a s a m easure of dam a ges it i s necessary f or a plaintif

f to establish by a preponderance o f the evidence that (1) the repairs are necessary as a result of the alleged wrongful act and ( 2 ) t h e c o s t of t he repairs are necessary a nd reasonable

. The Court f

urther instructs the jury that unless the Vicksburg M asonic Tem ple has proven t o y ou by a prep o n d e rance of the evidence t hat construction of a retaining wall i s n e c e s sary as a result of the alleged wrongf u l acts of Lewis Miller, Jr. a nd that the c ost of such retaining wall is necessary and reasonable then y ou m ay

not award dam ages f

o r the cost of

any retaining wall. (Em phasis added). T he jury determ ined that the evidence was suf f icient to warrant dam ages of $200,000. ¶27. Finding suf

f i cient evidence to support the verdict, we af f irm the judgm ent. ¶28. AFFIRMED.
C A R L T O N A N D J . W I L S O N , P . J J . , W E S T B R O O K S , T I N D E L L , M c D O N A L D , 1 2LAWRENCE, McCARTY AND C. W ILSON, JJ., CONCUR. GREENLEE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION. GREENLEE, J., DISSENTING: ¶29. I a m of the o pinion that the Lodge f ai l e d to prove the proper m easure of dam ages. Theref ore, I respectf

ully dissent. ¶30. It is well e stablished that “[ t]he plaintif f has the burden of proving dam ages.” Maslon

v. Brown , 148 So. 3d 27, 30 ( ¶ 9 ) ( M i s s. Ct. App. 2014) (citing Evans v. Clemons , 872 So. 2d 23, 29 (¶21) (Miss. C t. A pp. 2003)). However, our suprem e court has noted that “[ i]t is

s o me t i me s a perplexing question as to the m ethod to be used in proving dam ages to r ea l property .” Chevron Oil Company v. Snellgrove , 175 So. 2d 471, 474 (Miss. 1965). ¶31. The m ajority o p i nion and the Lodge rely on Bell v. First Columbus National Bank , 493 So. 2d 964 (Miss. 1986), f or the appropriate m easure of dam ages in this case. In Bell ,

our s uprem e court held that a “[ p ]laintif f can choose to prove either r e a s o n a b l e cost of replacem e nt or r epairs or dim inution in value, and if he p roves e ither o f t hese m easures with reasonable certainty , d am ages are allowable so long as the plaintif f will not be unjustly enriched and the def

endant does not dem o nstrate t hat there is a m ore appropriate m easure of dam ages.” Bell , 493 So. 2d at 970. H o w ever, in Bell , our suprem e court was f orm ulating

m ethod f or p roving dam ages resulting f rom waste. Id . at 969-70. The B ells “im paired the value of

. . . m ortgaged property b y selling item s in the hom e bef ore f oreclosure . . . .” Id

. Because the case bef

ore this Court involves dam age t o real property (or land), I believe that Bell is inapplicable.

1 3¶32. W i th respect to t he m ethod f or proving dam ages to real property , our suprem e court has held:
As a general rule, t he m easure of dam ages in action[ s] f or perm anent injury to land where there is n o willf ul trespass is the di f

f e r e n c e in the value in the bef ore-and-af

ter dam age to the prem ises. W e h ave called attention t o this rule repeatedly

. I t is also t rue that where the land

. . . has been dam aged but the property m ay b e r e s t o r e d to its f orm er condition at a cost less t han the value determ ine[ d] by the dim inution of the v alue of the land, the cost of r estoration of the property , plus com

pensation f

or the loss o f its use, m ay be the m easure of dam ages. This rule, however, is usually c onf i n e d to the introduction of evidence to show a reduction, a nd not an increas e , o f d am ages above the dim inution in value of

the land resulting f

rom the injury

. Chevron Oil Company , 175 So. 2d at 474 (citations om itted). ¶33. I recognize that the “general rule” provides f or the m easure of dam a ges in actions f or permanent injury to land. The m ajority opinion c i te s t o M o r r i s v. W

.R. Fairchild
Construction Co. Ltd. , 7 9 2 So. 2d 282 (Miss. Ct. App. 2001), a nd Maslon v. Brown , 148 So. 3d 27 (Miss. Ct. App. 2014), which are cases that involve t e m p o r ary injury to land. However, there is no e vidence that the injury t o the land in this case was tem porary . At trial, the plaintif

f ’s expert sim

ply gave an e stim ate f

or the cost o f a retaining wall. He did not testif y that the dam a ge could be corrected through repairs. 4 ¶34. But even if the injury to the land was tem p orary , our suprem e c o urt has held that the

cost of r e p a i r s m ay be t he m easure of dam a ges w hen the p roperty can be “restored to its
f orm er condition a t a c ost less t han the value determined by t he diminution of the value of the land

. . . .” Chevron O il Company , 175 So. 2d at 474 (em phasis added). Here, there was

4 It is also w o rth n o tin g th at M a slo n an d a n o th er case cited b y t h e m aj o rity

— L o cklea r v. S e llers , 1 2 6 S o . 3 d 9 7 8 ( M i ss. C t. A p p . 2 0 1 3 )— in v o lv ed tresp asses to lan d

. H ere, th ere w a s n o w illf

u l tresp ass. 1 4no evidence as to the value of the land bef

ore or af ter the erosion. ¶35. As noted above, the m a jority opinion cites t o Morris v. W .R. Fairchild Construction
Co. Ltd. In that c ase, Fairchild sold land to a person nam ed L aird. Morris , 792 So. 2d at 285 (¶12). “As part of t he term s o f sale, Fairchild agreed to l e v e l o u t a portion of t he [ land].” Id

. However, part of the land w as on M o r r i s ’ s p r o p e rty , and the leveling created a bluf f , which began to erode. Id

. At the trial in M orris , several estim ates, ranging f rom $9,515 to $113,105, f

o r c o sts to repair the bluf f were subm itted. I

d

. a t 285 (¶13). A nd each party
p r e s ented their own appraisals o f Morris’s property , both b ef ore and af

ter the excavati o n . Id

. “Morris’s appraisal provided f or a loss in value of $113,275.” Id

. W hereas Fairchild’s appraisal stipulated a $33,000 loss in value. I d

. ¶36. I n M

o rris , “[ t]he chancellor f o und that the appropriate m easure b y w h i c h t o c u r e Morris’s property would be [ a ] six [ f oot] retaining wall at a cost of $ 19,629

. 5 0

. ” Id

. In af f irm ing the chancellor’ s j u d gm ent in Morris , this Court noted that “where property has been dam aged but m ay be restored to its f o rm e r condition at a cost less than t he loss of the value of the land , the cost of restoration m ay be the m e asure of dam a ges.” Id

. at 285 (¶14) (em phasis added). This Court f urther stated that “the prop e r m easure o f d am ages should have t he e f

f ect of f ully com pensating [ the injured p arty ] w ith the least possible burden to [ the def endant], as this ‘is the object of every such rule.’” I d

. at 2 8 6 ( ¶ 1 4 ) (quoting Sun Oil Company v. Nunnery , 170 So. 2d 24, 32 (Miss. 1964)). ¶37. The Lodge f

ailed to prove the proper m easure o f dam ages by not of f ering proof of

any decrease in value o f the real property

. Neither the court nor the jury had the abili t y to

com pare t he am ounts o f the costs to repair with the dim inution in value a nd theref ore could 1 5not h a v e decided what t he law r equired, which would have b een the lesser of the two.

Theref ore, I m ust dissent.

1 6