563 N.W.2d 154 (Wis. 1997)
In the fall of 1993, a neighbor of Harvey and Lois Jacque purchased a mobile home from Steenberg Homes, Inc., with delivery included in the price.1
The Jacques, an elderly retired farming couple, owned approximately 170 acres near Wilke's Lake in the town of Schleswig, Wisconsin.2 Steenberg determined that the easiest delivery route crossed the Jacques' land rather than using a private road covered in up to seven feet of snow with a sharp curve requiring rollers.3
Steenberg asked the Jacques on several separate occasions whether it could move the home across the Jacques' farm field.4 The Jacques refused.5 The Jacques were sensitive about allowing others on their land because they had lost property valued at over $10,000 to other neighbors in an adverse possession action in the mid-1980's.6
On the morning of delivery, Mr. Jacque observed the mobile home parked on the corner of the town road adjacent to his property.7 Mr. Jacque informed the movers that it was the Jacques' land they were planning to cross and that Steenberg did not have permission to cross their land.8
Once everyone was present, the Jacques showed the assistant manager an aerial map and plat book of the township to prove their ownership of the land, and reiterated their demand that the home not be moved across their land.9 At that point, the assistant manager asked Mr. Jacque how much money it would take to get permission.10 Mr. Jacque responded that it was not a question of money; the Jacques just did not want Steenberg to cross their land.11
At trial, one of Steenberg's employees testified that, upon coming out of the Jacques' home, the assistant manager stated: "I don't give a — what [Mr. Jacque] said, just get the home in there any way you can."12 The employees, after beginning down the private road, ultimately used a "bobcat" to cut a path through the Jacques' snow-covered field and hauled the home across the Jacques' land to the neighbor's lot.13
When a neighbor informed the Jacques that Steenberg had, in fact, moved the mobile home across the Jacques' land, Mr. Jacque called the Manitowoc County Sheriffs Department.14 After interviewing the parties and observing the scene, an officer from the sheriffs department issued a $30 citation to Steenberg's assistant manager.15
The Jacques commenced an intentional tort action in Manitowoc County Circuit Court, Judge Allan J. Deehr presiding, seeking compensatory and punitive damages from Steenberg.16 The case was tried before a jury on December 1, 1994.17 For purposes of the motion, Steenberg admitted to an intentional trespass to land, but asked the circuit court to find that the Jacques were not entitled to compensatory damages or punitive damages based on insufficiency of the evidence.18 The jury awarded the Jacques $1 nominal damages and $100,000 punitive damages.19 The circuit court set aside the jury's award of $100,000.20 The court of appeals affirmed, reluctantly concluding that it could not reinstate the punitive damages because it was bound by precedent establishing that an award of nominal damages will not sustain a punitive damage award.21
Whether an award of nominal damages for intentional trespass to land may support a punitive damage award?22
The general rule requires compensatory damages to support punitive damages.23 This rule does not apply when the tort is intentional trespass to land.24 The individual's right to exclude others from property and society's interest in deterrence support punitive damages even with only nominal damages.25
Yes. Steenberg asked the Jacques on several separate occasions whether it could move the home across the Jacques' farm field. The Jacques refused each request. On the morning of delivery, Mr. Jacque informed the movers that it was the Jacques' land they were planning to cross and that Steenberg did not have permission to cross their land.26
Despite these refusals, the assistant manager instructed employees to deliver the home across the land anyway.27 Steenberg employees used a bobcat to cut a path through the Jacques' snow-covered field and hauled the home across it.28 This intentional trespass caused actual harm to the Jacques' property right, as the law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded.29
An award of nominal damages for intentional trespass to land may support a punitive damage award.30
Whether a holding that nominal damages may support a punitive damage award in an intentional trespass case should apply to Steenberg Homes or only prospectively?31
No. Steenberg did not concede the intentional trespass until after the Jacques rested at trial.34 At this point, when overwhelming evidence clearly established Steenberg's intentional trespass on the Jacques' land, then and only then, did Steenberg rely on Barnard and concede intentional trespass.35 This type of reliance does not give rise to the inequity that sunbursting is designed to prevent.36 Retroactivity is usually justified as a reward for the litigant who has persevered in attacking an unsound rule.37
To refuse to apply the new rule here would deprive the Jacques of any benefit from their effort and expense in challenging the old rule which we now declare erroneous.38
The holding applies to Steenberg Homes rather than only prospectively.39
Whether the $100,000 in punitive damages awarded by the jury is excessive?40
No. Steenberg's conduct was reprehensible because they disregarded the Jacques' repeated refusals, blocked the road to hide the route, and the assistant manager laughed after the trespass.43 The $1 nominal damages reflect the difficulty in measuring the harm to the right to exclude.44 A $30 forfeiture and a $1 nominal damage award are unlikely to restrain Steenberg Homes from similar conduct in the future.45 An appropriate punitive damage award probably will.46
The $100,000 punitive damages award does not excessively punish Steenberg Homes for its egregious conduct, to deter it from trespassing again, and to deter others who might be similarly tempted.47
The $100,000 in punitive damages awarded by the jury is not excessive.48