No. 85-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ALDO KEBSCHULL, 

Plaintiff and Appellant, 

-VSHARVEY NOTT , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honora.ble G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George T. Radovich, Billings, Montana 

For Respondent: 

Laurence R. Martin, Billings, Montana 

Submitted on Briefs: Oct. 10, 1985 

Decided: January 28, 1986 

Filed: JAN 2 2 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment of the District Court 

of the Thirteenth Judicial District in and for Carbon County, 

Montana. The Honorable G. Todd Baugh entered a judgment in 

favor of the plaintiff, but no damages were awarded because 

of a prior ruling by the Honorable Charles Luedke restricting 

damages. We affirm. 

Plaintiff, Kebschull, owns a 170 acre farm about three 

miles northeast of Bridger, Montana, on the Clarks Fork of 

the Yellowstone River. He leased 120 acres of arable ].and to 

defendant, Nott, who farmed it. Kebschull lived on the 

remaining portion, and pastured a few cattle. While Nott was 

burning brush along a ditch bank to clear it, a strong wind 

arose, and in spite of Nott's efforts to contain the fire, it 

spread from the ditch to Kebschull's river bottom land 

adjacent to the ditch, including a bushy, wooded island. The 

area which was burned is approximately 5.8 acres of natural, 

unimproved growth, consisting mainly of underbrush and 

noncommercial trees, mostly cottonwoods. Nott's liability 

for starting the fire is not disputed. There is testimony 

the fire did not result in any diminution in the fair market 

value of the burned property. 

Kebschull filed an action to recover damages for the 

destruction of the growing vegetation. Prior to trial the 

District Court ruled, on motion for summary judgment, that 

Nott was stricktly liable for damages from the fire. On 

cross-motions in limine the court ruled the proper measure of 

damages in this case was the difference in market value of 

the real property before and after the fire. The parties 

stipulated that Nott set the fire and the fire was the 
proximate cause of the damage to the vegetation. Only the 

issue of damages proceeded to trial and the evidence at trial 

was limited by the court's prior ruling granting Nottls 

motion in limine excluding evidence relative to the 

replacement value of the destroyed items. No damages were 

awarded because both Kebschullls and Nott's appraisers agreed 

there was no difference in the market value of the burned 

property before and after the fire. 

Kebschull's appeal raises only the legal issue of 

whether the District Court's ruling on the cross-motions in 

limine and resulting limitation of evidence a.t trial is 

correct as a matter of law. 

By granting Nott's motion in limine the court correctly 

ruled the proper measure of damages for the injury by fire to 

growing vegetation on the property is the difference between 

the market value of the real property before and after the 

fire. 

Kebschull argues he must be allowed restoration costs, 

citing Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 

500, 414 P.2d 918, and Bos v. Dolajak (1975), 167 Mont. 1, 

534 P.2d 1258. Kebschull misinterprets these cases, however. 

Spackman does not allow restoration costs. In Spackman sewage 

backed up into the basement of plaintiff's motel causing 

considerable damage to various machines and personal property 

stored there. Plaintiff made a careful list of all damaged 

items, valuing many of them as though they were new although 

they were not. The Court said the purpose of awarding 

damages is to compensate the injured party for actual loss or 

injury -- no more, no less. 

[There are many] ingenious methods, 

systems and formulas for determining in 

monetary terms the value of property 
partially damaged or destroyed . . . Another guide or measure concerns 

property damaged but not totally 

destroyed, in which case the genera.11~ 

accepted estimate of damages is the 

difference in market value at the place 

before and after injury. 

Spackman, 147 Mont. at 506-507, 414 P.2d at 921-922. 

Ultimately good sense must be applied, rather than mechanical 

application of formulas. 

This Court is aware that rigid adherence in all cases 

to the above rule would not always serve the objectives of 

compensating the injured party for actual loss. In some 

cases the property might be more valuable after destruction 

of part of it, and strict application of the rule would 

penalize the owner and reward the wrongdoer. Nor should a 

landowner be forced by this method to put his land to a use 

for which he has no desire because the loss has conditioned 

the land for a higher use. 

Such results can be obviated by ascertaining a value 

separate from the land of the thing destroyed or damaged, and 

then compensate the injured party for restoration or 

replacement costs. This is what the court did in Bos, supra. 

Kebschull's reliance on - Bos is likewise misplaced, 

however. The action in - Bos arose out of negligence as well 

as breach of contract. We upheld a jury award of the market 

value of a damaged silo at the time of the loss, although the 

award was greater than the amount paid for the purchase of 

the used silo. Plaintiffs also were awarded replacement 

costs and damages they had incurred for loss of use, less an 

offset for the foundation. The silo in - Bos was not a readily 

replaceable item. Its expected use was integrated into the 

Bos' dairy farming operation and destruction of the silo 

presented serious problems. The rule in Spackman can not be 
applied in - Bos, nor can the rule in - Bos be applied in the 

immediate case. In this case the property is growing 

vegetation which is part of the real property. 

We have not had previous opportunity to apply the 

general rule of damages to growing vegetation, as have some 

of our sister states. 

The Minnesota court makes a distinction between 

vegetation which serves a utilitarian purpose, Rector, Etc. 

v. C. S. McCrossan (Minn.. 1975), 235 N.W.2d 609, and those 

which are for the most part ill-formed, unattractive, and of 

little intrinsic value. Baillon v. Carl Bolander & Sons Co. 

(Minn. 1975), 235 N.W.2d 613, 615. In Rector where in 

addition to their natural aesthetic beauty, the trees acted 

as a sound barrier, the high court a-llowed the jury to 

consider cost of replacement and before and after value of 

the land in order to permit flexibility and achieve a just 

and reasonable result. 235 N.W.2d at 613. In Baillon, 

however, the court refused to adopt the replacement rule 

saying to do so conceivably would involve an expense greatly 

out of proportion to the actual damage to the real estate. 

235 N.W.2d at 615. 

The Arkansas court found that some shade trees which 

were destroyed by fire were part of the freehold and their 

value was actually the depreciation of the value in the 

property on which they stood. Because their value depended 

on their connection with the soil, the measure of damages is 

the difference in market values before and after the 

destruction. Cy Carney Appliance Company v. True (Ark. 

1956), 295 S.W.2d 768. Thus a determining factor is whether 

the d-estroyed trees have any value apart from the land where 

they stood. 
We believe the Arkansas holding to be better reasoned. 

Even if we applied the Minnesota court's reasoning, however, 

the measure of damages in this case must be the difference 

between the value of the property before and after the fire. 

The replacement cost of the trees would be greater than the 

actual damage to the real estate regardless of their utility 

or lack of utility. Appraisers for both Kebschull and Nott 

testified the market value of the land was not diminished as 

a result of the fire. 

The order of the District Court is affirmed. 

We concur: 

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