## Facts

- Mark and Janis Evenson bought 160 acres of rural property in Greenwood County, Kansas, containing trees and grapevines, and three wooden outbuildings (a utility building, a pole barn, and a lean-to shed).
- The property was partly leased for crops and hay and otherwise used for recreation (including hunting, camping, and a maintained picnic area).
- Tim Lilley leased adjoining pastureland and set a controlled burn on April 12, 2006; the fire spread onto the Evensons’ land, destroying the outbuildings and roughly 200 trees.
- Lilley stipulated that he was at fault for the fire and resulting damage; the dispute concerned damages only and was tried to the court on stipulated facts and documents.
- The Evensons offered: (1) a nursery estimate, prepared about 20 months after the fire, valuing replacement of 213 trees plus irrigation at $307,999; and (2) a construction proposal to replace the outbuildings with new metal buildings for $23,500.
- Lilley offered a real-estate appraisal measuring the property’s loss by the difference in fair market value before and after the fire, totaling $4,687 plus debris removal.

## Issues

1. In a negligence action for fire damage to rural land that destroys trees and outbuildings, whether damages should be measured by replacement cost of the destroyed items or by diminution in the land’s fair market value immediately before and after the fire.
2. When, if ever, trees may be valued separately from the land (e.g., by replacement cost or intrinsic value) rather than through overall market-value diminution.

## Decision

- The Kansas Supreme Court affirmed the judgment awarding $4,687 in diminution in market value plus $3,000 for debris removal, for a total of $7,687.
- The Court held the district court did not err by using a before-and-after market-value measure and rejecting the Evensons’ large replacement-cost estimate.
- The Court stated that labeling the injury “temporary” or “permanent” did not control the analysis; despite flaws in the lower courts’ framing, the resulting award was correct.

## Legal Principles

- There is no single fixed measure of damages for negligent destruction of trees; courts may consider more than one measure to reach a just result, but may not award damages under multiple theories for the same injury.
- The general rule for negligent injury to trees is the “before-and-after” measure: the difference in the market value of the land immediately before and immediately after the injury.
- Trees may be valued separately from the land only when evidence shows they had a separate or intrinsic value not adequately captured by market-value diminution.
- Tort damages aim to make the plaintiff whole by restoring the pre-injury position; damages should not confer a windfall.
- For damage to real property, the ordinary measure is diminution in value immediately before and after the harm; total destruction is measured by fair market value at the time of destruction.

## Conclusion

The court affirmed a modest damages award based on diminution in the rural property’s market value, holding that replacement-cost damages for trees and outbuildings were improper on this record because they would overcompensate the owners and lacked proof that the trees had a distinct value independent of the land.


Evenson v. Lilley, 282 P.3d 610 (Kan. 2012)