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Keywords

lawsuitplaintiffdefendantdamagesinjunctiontrial
plaintiffdefendantdamagesappealtrialcommon law

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Falejczyk v. Meo, 31 Ill.App.2d 372, 176 N.E.2d 10

Facts

The plaintiffs owned a vacant lot since 1923, which the defendant unlawfully occupied starting May 1, 1954, using it for parking and a driveway. The plaintiffs filed a complaint on June 21, 1957, seeking an injunction, restoration of the lot, and damages for the defendant's use. A temporary injunction was issued on July 7, 1957, commanding the defendant to vacate the premises. After a trial, the court found that the plaintiffs had not re-entered the land before filing the complaint and awarded only nominal damages.

Defendant, an operator of a restaurant and cocktail lounge, took possession of part of plaintiffs' adjoining vacant lot, covered it with asphalt and gravel, and used it for parking and a driveway for the convenience of its customers.

Issue

Whether the trial court erred in denying the plaintiffs damages for the use of the land trespassed upon, given that they had not re-entered the property prior to the lawsuit.

The primary question is whether the trial court was in error in finding that plaintiffs were not entitled to damages representing the worth of the use of the land trespassed upon, because plaintiffs had failed to make a re-entry thereon prior to the institution of this proceeding.

Rule

A claim for mesne profits requires the plaintiff to have re-entered the property before commencing the action, as damages cannot be awarded without evidence of the worth of the use of the property.

As the action to recover mesne profits lies for the time plaintiff has been deprived of the use of the premises, an essential element of the action is the re-entry into possession by plaintiff previous to the commencement of the action.

Analysis

The court applied the rule of re-entry, determining that since the plaintiffs had not re-entered the property before filing the lawsuit, they were not entitled to damages for the use of the land. The court noted that the nominal damages awarded were for the initial trespass and did not cover the ongoing use of the property by the defendant.

Considering the primary question, we believe plaintiffs' claim for the worth of the use of the property while the trespass lasted should be considered in the light of the common law rules which have been applied in actions of trespass to recover mesne profits.

Conclusion

The court affirmed the lower court's decision, maintaining that the plaintiffs were not entitled to damages for the use of the property until they re-entered it.

Accordingly, and in accordance with the views expressed herein, the decree is affirmed.

Who won?

Defendant prevailed in the sense that the court upheld the nominal damages ruling, indicating that the plaintiffs could not recover mesne profits without re-entry.

We do not agree with defendant that this case comes within the rule that a party to a decree cannot avail himself of those parts which are beneficial to him and afterwards prosecute an appeal to reverse that part which is unfavorable.

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