12 Trespass to Chattels and Conversion

Elements of Trespass to Chattels

1. Intent
2. To use or intermeddle with the chattel of another or to dispossess the other of their chattel
3. Without permission or justification, and which
4. Causes harm to or destruction of the chattel or causes a substantial interference with the possessor’s use of the chattel

Elements of Conversion

1. Intent
2. To exercise dominion or control over a chattel
3. Which dispossesses or deprives its owner permanently or indefinitely

“Chattels” means “personal property” (as opposed to “real property” like land or intellectual property like patents, copyright or trademarks). Chattels include animals: the law treats pets as well as livestock as chattels. Chattels do not include cash; generally, chattels are “things.”

The trespass in the tort’s name refers to the intentional use of another’s chattel or interference without permission or justification for the use or interference, resulting in destruction or demonstrable harm. The tort of conversion conceptualizes the harm more broadly: it is the ownership interest that has been violated because the defendant has “exercised control” over the plaintiff’s property.

The tort of trespass to chattels is somewhat similar to the interest we protect through battery: a right to be free from physical invasions, except the interest here is narrower. Recall that battery did not require proof of harm and even a “beneficial” invasion could be a battery if unconsented. The interest protected through battery was the inviolability of the body. Similarly, the interest protected through the tort of trespass to land is the inviolability of the ownership of land. Conversion is more similar to battery and trespass to land in that protects a broader interest than mere harm to stuff: it protects the inviolability of one’s ownership right. Consequently, a plaintiff who can show that their ownership right has been interfered with in the defendant’s exercising control over the plaintiff’s chattel will not have to prove harm. Just as was the case with battery, making out the elements proves the invasion of the interest and it is the invasion of the interest that constitutes the harm.

The intent required for both of these personal property torts is similar to the intent for battery: simply using or “interfering” with the chattel, even without any knowledge that one is interfering with another’s possessory interest, is enough; specific intent to invade another’s interest is not necessary. (Distinguish this from false imprisonment, which requires the specific intent to confine.) The trespassory use must be substantial; it would trivialize the judicial system if mere annoyances over objects of common use were litigable.

Trespass to chattels is sometimes helpful in pursuing a claim for another’s intentionally harming one’s animals. However, when serious damage to personal property, including animals, occurs, the tort of conversion is the usually the more appropriate action to bring and as a matter of practice, the two torts are often brought together as alternative theories of liability. While conversion requires a higher showing with regard to the defendant’s conduct, if the plaintiff can successfully plead it, the plaintiff need not prove harm. By contrast, to succeed in an action for trespass to chattels, the plaintiff must prove the alleged harm or destruction to the chattels. Note that causing the value of the chattel to drop counts as “harm” to the chattel. The plaintiff can recover for all the harm to the chattel and incidental damages the unauthorized use causes. The measure of damages is the market value at the time of the dispossession or intermeddling.

For example, if a person borrows their roommate’s car without permission and returns it safely without damage, there has been no trespass to chattels so long as the owner did not suffer as a result of not having it available during the time of the roommate’s use. Trespass to chattels would require that the driver harm the car or that the owner need the car and be unable to use it during the specified time of the unauthorized use. If the owner needed it for some purpose and had to take a cab instead of driving, for instance, or missed an opportunity for a job interview, the damages from the tort could compensate for those harms even if the car was not damaged.

Grosch v. Tunica County, Mississippi et al, U.S. District Court, N.D. Miss., Delta Div. (2008)
(569 F. Supp.2d 676)

[Adam Grosch, a gambler, brought claims of trespass to chattels and conversion against the Hollywood Casino Corporation, where he had been a patron, and the Mississippi Gaming Commission; the Commission moved to dismiss the plaintiff’s claims for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) arguing that such claims are within the exclusive jurisdiction of the Mississippi Gaming Commission pursuant to Mississippi statutes.]

“The difference between trespass to chattels and conversion is primarily one of degree. Trespass to chattels in modern tort law involves interference or damage that is of a less serious or substantial nature. Conversion claims involve substantial interference or damage. Otherwise the elements are the same. Conversion is by far the more important of the two torts.” [c] To prevail on a claim of trespass to chattels, a plaintiff “must establish *678 that there has been an unauthorized interference with his possession of personal property, or an unauthorized use of his personal property.” [c] “If the interference is of such a substantial nature that the defendant can justly be compelled to pay the entire value of the chattel, the plaintiff’s remedy is an action for conversion.” [c] “[T]here is a conversion only when there is an ‘intent to exercise dominion or control over goods which is inconsistent with the true owner’s right.’ While intent is necessary, it need not be the intent of a wrongdoer.” [c]

The Second Amended Complaint does not specifically delineate the plaintiff’s case theory regarding his claims for trespass to chattels and conversion. The court surmises from the factual background and the briefs that the plaintiff alleges that the defendants exercised dominion and control over his property—i.e., the money that is represented by the casino chips he undisputedly won—which were inconsistent with his ownership rights because the defendants would not cash in his chips unless and until the plaintiff handed over his driver’s license to the casino. The plaintiff argues that the defendants had no right to require that he relinquish dominion and control of his ID to the casino for any purpose other than simply verifying his identity.

In the instant motion, the Hollywood Casino characterizes the dispute as one wherein the plaintiff looked to be under twenty-one years of age and that they simply wanted his ID to verify his age. The plaintiff argues that they already knew he was over twenty-one, since he had a player’s card and would not have been allowed in the area where he gambled. Furthermore, the plaintiff alleges that he did not refuse to prove his age by showing his ID but rather refused to physically give it to the casino because he feared they would copy his ID and send it to other casinos as a warning that the plaintiff was a card counter.

Hollywood’s primary argument is that the claims of trespass to chattels and conversion should be dismissed because they are within the exclusive jurisdiction of the Mississippi Gaming Commission since they involve a “claim by a patron … for payment of a gaming debt” pursuant to § 75–76–157(2) of the Mississippi Gaming Control Act. Hollywood cites Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038 (Miss. 2000) for the proposition that the Mississippi Gaming Commission has exclusive jurisdiction over “all gaming matters” and that the trespass to chattels and conversion claims are “gaming matters.”

The court disagrees. [***] The Mississippi Supreme Court has recently indicated that “all gaming matters” means “gaming debts” in relation to § 75–76–157. In Ameristar Casino Vicksburg, Inc. v. Duckworth, 990 So.2d 758, 2008 WL 2447274 (Miss. June 19, 2008), the Court concluded that a dispute involving a raffle at a casino was not within the jurisdiction of the Mississippi Gaming Commission because the dispute did not involve a game of gambling or a “gaming debt” pursuant to § 75–76–157. [***] If Hollywood were correct that the gaming commission enjoys exclusive jurisdiction over “all gaming matters” when defined expansively as “any dispute that would not exist but for participation in gambling,” then, in theory, all of the plaintiff’s remaining Mississippi-law causes of actions—i.e., false arrest, false imprisonment, abuse of process, and malicious prosecution—would also be within the exclusive jurisdiction of the gaming commission. Section 75–76–157(2) by its plain language clearly does not indicate this. Rather, it confines its reach to claims involving payment of gaming debts.

The plaintiff in the instant case argues that his trespass to chattels and conversion claims are not claims for gaming debts since he is not asserting “[a] claim … for payment of a gaming debt” per § 75–76–157(2) because he in fact received his money. Rather, the focus of his claims, he argues, is on the unlawful withholding of his undisputed winnings unless and until he turned over his other personal property—i.e., his identification—to the control and dominion of the defendants. The plaintiff alleges that he never agreed to hand over his ID to the casino and they would not have received and copied it but for the actions of the Tunica County Sheriff’s Department in taking his ID from him.

The court is persuaded that this understanding of the plaintiff’s trespass to chattels and conversion claims takes them out of the realm of seeking payment for a gaming debt. Therefore, the gaming commission does not have exclusive jurisdiction over these claims pursuant to § 75–76–157(2).

[***] Motion to dismiss the plaintiff’s claims for trespass to chattels and conversion for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is DENIED.

Note 1. What is the chattel with respect to which the plaintiff alleges he has been dispossessed?

Note 2. At trial, Grosch did indeed prevail on his personal property claims. However, he also brought numerous claims against the casino as well as the County, including violation of his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 as well as claims of false arrest, false imprisonment, abuse of process, malicious prosecution and violation of state constitutional rights. Grosch was able to provide evidence that the casino and the Sheriff routinely engaged in some form of collusion involving the stratagem of the casino’s refusing to hand over winnings unless players yielded their ID cards and the casino and Sheriff unlawfully detaining players.

The jury found the Hollywood casino was liable for conversion and trespass to chattels and awarded $925.00, the cash value of the chips Grosch had won and that the casino had refused to cash for him unless he handed over his license. The award was upheld on appeal even though by that point Grosch had been forced to hand over his ID and had received the value of his chips. The award was given to reflect the interference with his possessory interest, not to compensate him for the exact value of the chips. He also sought punitive damages and the jury found, by clear and convincing evidence, that “Hollywood casino should pay punitive damages for the plaintiff’s § 1983 claim and his state-law claims for false imprisonment, malicious prosecution, abuse of process, conversion, and trespass to chattels in a total amount of $600,500.00.” This amount was also upheld on appeal. Grosch v. Tunica Cty., Miss., 2009 WL 161856, at *1 (N.D. Miss. Jan. 22, 2009).

Note 3. Effect of Mistake. Note that mistaken beliefs regarding the chattel are not usually a defense. If in Grosch the casino had reasonably confused his chips with another player’s, it would not alter the liability analysis unless the casino rectified its error immediately. Even a good-faith use of a chattel can satisfy the elements of both of the personal property torts if the belief is unreasonable in its mistake. When the mistake is reasonable—such as when a patron takes the wrong black suitcase at the airport or the wrong black umbrella from a restaurant—whether liability attaches will depend on how quickly they discover and rectify the error.

Note 4. Trespass to chattels is a somewhat old-fashioned tort in that it is typically an action for damage to compensate for the costs of repairing or replacing property, which is often not worth bringing a lawsuit to redress. For some time, the use of trespass to chattels had fallen out of favor. However, in the internet era, the tort experienced a revival when the tort was mobilized to address unwanted commercial email such as spam, unwanted faxes, and “spiders” or automatic programs that search the internet and were held to be trespassing various database servers. Laura Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, 17 Berkeley Tech. L.J. 421 (2002). For example, in eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), the online auction site was held to be likely to prevail, for purposes of obtaining a preliminary injunction, against an online auction aggregating site which was conducting automated searches of the plaintiff’s site without permission given evidence that the defendant’s searches diminished the value of the plaintiff’s site.

“[T]he electronic signals generated by the [defendants’] activities were sufficiently tangible to support a trespass cause of action.” [***] In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish:

(1) defendant intentionally and without authorization *1070 interfered with plaintiff’s possessory interest in the computer system; and (2) defendant’s unauthorized use proximately resulted in damage to plaintiff. Id. at 1069-70.

The use of trespass to chattels to address this new source of harm (and annoyance) reflects one of the ways in which tort law adapts to changing social, technological and economic circumstances.

Luis v. Smith Partners & Associates Ltd., U.S. Dist Ct., N.D. Illinois, Eastern Division (2012)
(2012 WL 5077726)

*1 Plaintiffs Maria Luis and Lucy Gomez brought this lawsuit against Defendants Smith Partners & Associates, Ltd., Smith REO Properties, Coya Smith, and Andy Horn, alleging violations of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (“Fair Housing Act”), 42 U.S.C. § 3601 et seq., [***] and Illinois law. Doc. 1. Defendants have moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). The motion is granted in part and denied in part. [***]

Plaintiffs reside at 5818 North Spaulding in Chicago, Illinois (“Property”). Doc. 1 at ¶ 5. [Editor’s note: All remaining references to the record omitted] Smith Partners and Associates, Ltd ., which operates under the assumed name Smith REO Properties, is a corporation that owns and manages residential properties. Smith Partners managed the Property throughout the relevant time period. Smith owns and operates Smith Partners. Horn is an agent of Smith Partners.

Beginning in Winter 2010, Defendants undertook a campaign of threats and harassment intended to force Plaintiffs to leave the Property. Defendants targeted Plaintiffs because they are Hispanic and in the belief that Hispanics are unwilling to defend themselves through the legal system. Horn entered the Property’s basement at some point in Winter 2010 and removed the furnace, causing the pipes to freeze. In November 2010, Horn padlocked the front door, which prevented Plaintiffs from entering the residence. In Spring 2011, Horn banged on the windows and doors and removed letters from the mailbox that were addressed to Plaintiffs. In May 2011, Horn entered the basement and removed most of its contents, including the furnace that Plaintiffs bought to replace the one that Horn had removed. In August 2011, Horn had the electricity and water disconnected; while doing so, Horn entered the Property and struck Gomez with the intent of intimidating Plaintiffs into vacating the property. In March 2012, Horn broke the locks to the front doors of each apartment at the Property. Horn did all of this at the request of Smith, his boss. On April 17, 2012, the City of Chicago turned off the water due to non-payment by Defendants.

I. Fair Housing Act (Count I)

*2 The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). The Act also makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. The Act governs conduct regardless of whether it occurs before or after a tenant or owner has acquired a property interest in a dwelling. [c]

To survive a motion to dismiss, a Fair Housing Act claim must allege discrimination related to the terms, conditions, privileges, or provisions of services of a dwelling. [cc] A claim also must plead the type of discrimination that occurred, by whom, and when. [cc] Here, Plaintiffs allege the type of discrimination that occurred (race or national origin), by whom (Smith, Horn, and Smith Partners), and when (from Winter 2010 through April 2012). These allegations are sufficient to survive a Rule 12(b)(6) motion. [cc] [***] [Editor’s note: Count II, a RICO claim, is omitted]

III. State Law Claims

A. Trespass to Chattel/Conversion (Count III)

Although the complaint labels Count III “Trespass to Chattel,” Plaintiffs’ brief recharacterizes the claim as one for conversion. Count III survives regardless of whether it is viewed as a trespass to chattel claim or a conversion claim. Under Illinois law, trespass to chattel is “injury to or interference with possession, with or without physical force … to personal property.” [c] “A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” Ibid. (quoting Restatement (Second) of Torts § 217 (1965)). The complaint alleges that Defendants stole Plaintiffs’ furnace, depriving them of its use. The complaint also alleges that Defendants locked the basement so that Plaintiffs could not access it or its contents. This is sufficient to state a trespass to chattel claim. See Matthews v. Homecoming Fin. Network, 2005 WL 2387688, at *8 (N.D.Ill. Sept.26, 2005) (allegation that the “defendants forcibly entered [plaintiff’s] home without his consent and changed the locks” are sufficient to state a trespass to chattel claim).

“Any unauthorized act by which an owner is deprived of his property permanently or indefinitely, or the exercise of dominion over property inconsistent with the rights of the owner, [is] a conversion.” [***] Because Plaintiffs allege a permanent deprivation of property in their possession caused by Defendants’ unauthorized acts, they have pleaded a plausible conversion claim.

B. Battery (Count IV)

To state a battery claim under Illinois law, a plaintiff must allege that the defendant engaged in “the wilful touching of the person of another” and “intend [ed] to cause a harmful or offensive contact.” [cc] The complaint alleges that “Horn entered the property illegally, threatened Plaintiffs, and struck Plaintiff Lucy Gomez,” and that “[t]he battery against Lucy Gomez was intended, through actual physical force, to intimidate Plaintiffs into vacating the property.” These allegations are sufficient to state a battery claim. [***]

*7 Defendants submit that the battery claim cannot proceed against Smith Partners and Smith because the complaint does not allege that they intended for Horn to commit a battery and because respondeat superior liability does not attach in these circumstances. The complaint, however, alleges that Horn was acting within the scope of his agency at all relevant times and that he acted at Smith’s request. Under settled tort principles, “the employer’s vicarious liability extends to the negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within the scope of the employment.” [cc] It follows that the battery claim stands as to Smith Partners and Smith.

C. Intentional Infliction of Emotional Distress (Count V)

To state an intentional infliction of emotional distress claim under Illinois law, a plaintiff must allege that: (1) the defendant’s conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that his conduct would do so; and (3) the defendant’s conduct actually caused severe emotional distress. [cc] [***]

Here, Plaintiffs allege that Defendants took advantage of their role as property managers to perpetrate a pattern of harassing and intimidating conduct, including conduct as extreme as removing Plaintiffs’ furnace during a Chicago winter. The sole alleged purpose of these alleged actions was to drive Plaintiffs from the Property, and Plaintiffs suffered emotional distress as a result. “An important factor” in intentional infliction of emotional distress claims “is whether a defendant abused a position of authority.” [c] Plaintiffs have alleged sufficient facts to state a plausible emotional distress claim.

D. Chicago Residential Landlord and Tenant Ordinance (Count VI)

*8 The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) provides in relevant part as follows:

It is unlawful for any landlord or any person acting at his direction knowingly to oust or dispossess or threaten or attempt to oust or dispossess any tenant from a dwelling unit without authority of law, by plugging, changing, adding or removing any lock or latching device; or by blocking any entrance into said unit; or by removing any door or window from said unit; or by interfering with the services to said unit; including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a tenant’s personal property from said unit; or by the removal or incapacitating of appliances or fixtures, except for the purpose of making necessary repairs; or by the use or threat of force, violence or injury to a tenant’s person or property; or by any act rendering a dwelling unit or any part thereof or any personal property located therein inaccessible or uninhabitable.

Chicago, Ill., Municipal Code § 5–12–160. The complaint alleges that Defendants sought to oust Plaintiffs by removing their furnace, padlocking the Property’s front door, turning off their hot water heater, and breaking their locks. Such acts violate § 5–12–160 of the RLTO, so the viability of Count VI turns on whether the relationship between Plaintiffs and Defendants is governed by the ordinance.

Defendants argue that by not alleging the existence of a valid lease agreement, the complaint fails to adequately plead that Plaintiffs are “tenants.” The argument does not carry the day. Although the complaint does not expressly allege that Plaintiffs are “tenants,” it alleges that they are “residents” and refers to the existence of a “tenancy” during the relevant period. This is sufficient at this point to plead that Plaintiffs are tenants. [***]

E. Statute of Limitations

The battery and intentional infliction of emotional distress claims are governed by a two-year statute of limitations. See 735 ILCS 5/13–202 (2008); [cc] So, too, is the RLTO claim. See Landis v. Marc Realty, LLC, 235 Ill.2d 1, 335 Ill.Dec. 581, 919 N.E.2d 300 (Ill.2009). Defendants contend that portions of these claims are barred on limitations grounds. As noted above, however, the instances of alleged misconduct all occurred within two years of the complaint’s filing. Defendants’ contention accordingly has no merit. [***]

Defendants also contend that Smith is not liable for any torts committed by Smith Partners or Horn. As noted above, the complaint alleges that Horn undertook his tortious actions at Smith’s request and as an agent of Smith Partners. “It is well established that traditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment.” [cc] This is true “even if the principal neither authorized nor ratified the acts.” [c] It follows, at least at the pleading stage, that Smith is a proper defendant.

*10 [The court denied the motion to dismiss as to Counts I, III, IV, V and VI].

Note 1. Given the ample evidence of multiple kinds of tortious conduct in this case, does it surprise you that the defendants fought it rather than settling? What was behind their litigation strategy, do you think?

Note 2. Tort law is available to remedy numerous harms the plaintiffs suffered on these facts. But should tort law be the appropriate remedy in a case like this one? Why or why not? Should tort law be necessary if the Fair Housing Act and municipal laws already proscribe the kinds of acts in which the defendant engaged? What does tort law add? What are the costs of using tort law to remedy these wrongs?

U.S. v. Hatahley, U.S. Court of Appeals Tenth Circuit (1958)
(257 F.2d 920)

This case is before us for the second time. It was brought by the plaintiffs, who are Indians of the Navajo tribe, under the provisions of the Federal Tort Claims Act (28 U.S.C.A. §§ 1346(b) and 2671 et seq.), to recover $100,000 as damages for the loss of horses and burros which they allege were wrongfully and unlawfully seized and destroyed in the State of Utah by agents of the United States Bureau of Land Management. The trial court found for the plaintiffs and entered a lump sum judgment of $100,000. We reversed on the grounds that the horses and burros in question had been lawfully seized and disposed of under the Utah ‘abandoned horse’ statute. *922 Utah Code Ann.1953, Title 47, Chapter 2. We did not consider the question of liability under the Federal Tort Claims Act, or the sufficiency of the findings as to damages. United States v. Hatahley, 10 Cir., 220 F.2d 666. The United States Supreme Court reversed, and held that the provisions of the Federal Range Code must be complied with before local procedures may be resorted to for the removal of trespassing livestock from the public range. It was also held that the acts of the government agents ‘were wrongful trespasses not involving discretion’, which gave rise to a claim compensable under the Federal Tort Claims Act. The case was remanded for specific findings as to damages. Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 752, 100 L.Ed. 1065.^[1] The factual background is set forth in our former opinion and that of the Supreme Court, and need not be repeated here.

Upon remand, the District Court took additional evidence on the issue of consequential damages, and without an amendment of the complaint, entered a judgment against the United States for the total sum of $186,017.50. The value of each horse or burro taken was fixed at $395; each plaintiff was awarded $3,500 for mental pain and suffering; and damages were given for one-half of the value of the diminution of the individual herds of sheep, goats and cattle between the date the horses and burros were taken in 1952, and the date of the last hearing in 1957. Except as to those relating to specific damages for each plaintiff, the findings of fact are generally a resume of the evidence favorable to the plaintiffs, and inferences which the court thought could be reasonably drawn therefrom. The United States contends that there were numerous errors in rejecting evidence, limiting cross-examination, and in disregarding fundamental principles of law. It vigorously insists that there has not been a fair and impartial trial as to damages, and that one cannot be obtained except before another Judge.

The parties stipulated as to the number of horses and burros which were taken from each plaintiff in the range clearance program. The damage for this wrongful taking is to be determined by the law of Utah. In Egelhoff v. Ogden City, 71 Utah 511, the Supreme Court of Utah, in discussing the rule as to damages in a case of this kind, said:

    ‘* * * Appellant contends that the measure of damages in this case is the difference between the market value of the property immediately before and immediately after the injury. It may be conceded that such is the proper measure of damages. It has been held by this court that the measure of damages for the destruction of a house is the ‘cost to reproduce it, and the value of its *923 use while that was being done.’ [c].^[2] Cf. Angerman Co., Inc., v. Edgermon, 76 Utah 394. (Personal property not entirely destroyed).

In a recent case the Utah court applied the replacement rule where personal property (poultry) was destroyed. [cc]

It is true that animals of a particular strain and trained for a special purpose are different from animals of another strain and not so trained, but that does not mean that they cannot be replaced by animals similarly developed and trained, or which may be trained after acquisition. Ordinarily

The fundamental principle of damages is to restore the injured party, as nearly as possible, to the position he would have been in had it not been for the wrong of the other party. [cc]^[3]Applying this rule, the plaintiffs were entitled to the market value, or replacement cost, of their horses and burros as of the time of taking, plus the use value of the animals during the interim between the taking and the time they, acting prudently, could have replaced the animals.

The plaintiffs did not prove the replacement cost of the animals, but relied upon a theory that the animals taken were unique because of their peculiar nature and training, and could not be replaced. The trial court accepted this theory, and relying upon some testimony that a horse or a burro could be traded among Indians for sheep, goats or cattle worth a stated price, together with the owner’s testimony of the value, arrived at a market value of $395 per head. No consideration was given to replacement cost. The court rejected evidence of the availability of like animals in the immediate vicinity, and their value. This, we think, was error.

It is true that animals of a particular strain and trained for a special purpose are different from animals of another strain and not so trained, but that does not mean that they cannot be replaced by animals similarly developed and trained, or which may be trained after acquisition. Ordinarily every domestic animal is developed and trained for the purpose to which the owner intends to use it. This development and training adds to its usefulness and generally increases the market value of the animal. In arriving at a fair market value of destroyed animals, the court should considered evidence of the availability of like animals, together with all other elements which go to make up market value. In proper instances, parties and witnesses may be cross-examined on the subject.

Likewise, we think the court applied an erroneous rule, wholly unsupported by the evidence, in arriving at the amount of loss of use damage. There was testimony by the plaintiffs that because of the loss of their horses and burros they were not able to maintain and look after as much livestock as they had been able to before the unlawful taking, consequently the size of their herds was reduced. If the unlawful taking of the animals was the proximate cause of the herd reductions, the measure of damages would be the loss of profits occasioned thereby. [c]

*924 Applying the same formula to all plaintiffs, the court, without giving consideration to the condition, age or sex of the animals, found the value of the sheep and goats in 1952 to be $15 per head, the cattle to be $150 per head. The number of sheep, goats and cattle which each plaintiff had in 1952, as well as the number which each had at the date of the last hearing was established. This difference was multiplied by $15, in the case of sheep and goats, and by $150, in the case of cattle, and judgment was entered for one-half of the amount of the result. No consideration was given to the disposition of the livestock by the plaintiffs in reducing the herds. For example, the plaintiff Sakezzie had 600 sheep and goats and 101 head of cattle when his horses and burros were taken in 1952. At the date of the last hearing in 1957, he had 160 head of sheep and goats and 39 head of cattle. The dollar value of the difference at $15 per head for the sheep and goats, and $150 per head for the cattle, amounted to $15,900. The court found ‘that approximately fifty percent of this amount represents damages to the plaintiff proximately caused by deprivation of the use of plaintiff’s horses, and on this basis plaintiff is entitled to recover $7,950.00 as consequential damages resulting from such deprivation’. The result, insofar as it related to use damage, was arbitrary, pure speculation, and clearly erroneous. In United States v. Huff, 5 Cir., 175 F.2d 678, a case where the method of computing damages for loss of sheep and goats was strikingly similar to that used here, the court said:

‘Moreover, there has been no sufficient showing of how much of the damage from the loss of the sheep and goats was proximately caused by the Government’s failure to maintain and repair the fences under the lease, and how much of the damage resulted from the various other causes. There is no testimony whatever as to the specific dates of loss of any of the sheep and goats, or as to their age, weight, condition and fair market value at the time of the alleged losses. It therefore becomes patent that the evidence as to the loss of these animals in each case fails to rise above mere speculation and guess.’ 175 F.2d 680.^[4]

Plaintiffs’ evidence indicated that the loss of their animals made it difficult and burdensome for them to obtain and transport needed water, wood, food, and game, and curtailed their travel for medical care and to tribal council meetings and ceremonies. Plaintiffs also testified that because of the loss of their animals they were not able to grow crops and gardens as extensively as before. These were factors upon which damages for loss of use could have been based. This does not exclude the right to damages for loss of profits which may have resulted from reduction of the number of livestock, or actual loss of the animals, if the unlawful acts of the defendant agents were the proximate cause of the loss and were proved to a reasonable degree of certainty. [cc] But the right to such damages does not extend forever, and it is limited to the time in which a prudent person would replace the destroyed horses and burros. The law requires only that the United States make full reparation for the pecuniary loss which their agents inflicted.

The District Court awarded each plaintiff the sum of $3,500 for mental pain and suffering. There is no evidence that any plaintiff was physically injured *925 when his horses and burros were taken. There was evidence that because of the seizure of their animals and the continued activity of government agents and white ranchers to rid the public range of trespassers, the plaintiffs and their families were frightened, and after the animals were taken, they were ‘sick at heart, their dignity suffered, and some of them cried’. There was considerable evidence that some of the plaintiffs mourned the loss of their animals for a long period of time. We think it quite clear that the sum given each plaintiff was wholly conjectural and picked out of thin air. The District Court seemed to think that because the horses and burros played such an important part in the Indians’ lives, the grief and hardships were the same as to each. The equal award to each plaintiff was based upon the grounds that it was not possible to separately evaluate the mental pain and suffering as to each individual, and that it was a community loss and a community sorrow.^[5]

Apparently the court found a total amount which should be awarded to all plaintiffs for pain and suffering, and divided it equally among them. There was no more justification for such division than there would have been in using the total value of the seized animals and dividing it equally among the plaintiffs. Pain and suffering is a personal and individual matter, not a common injury, and must be so treated. While damages for mental pain and suffering, where there has been no physical injury, are allowed only in extreme cases, they may be awarded in some circumstances. Restatement of the Law of Torts, §§ 46, 47; [cc] Any award for mental pain and suffering in this case must result from the wrongful taking of plaintiffs’ animals by agents of the United States, and nothing else.

As the case must be remanded for a new trial as to damages, we are confronted with the contention of the United States that it cannot obtain a fair and impartial trial before the same Judge because of his personal feelings in the matter. In our former opinion we had occasion to make some observations concerning the conduct of the trial. The Supreme Court referred to these observations on the bias and prejudice of the presiding Judge, and said that the trial was not so improperly conducted as to vitiate the findings. This statement did not relate to any of the findings as to damages which are under consideration here. A casual reading of the two records leaves no room for doubt that the District Judge was incensed and embittered, perhaps understandably so, by the general treatment over a period of years of the plaintiffs and other Indians in southeastern Utah by the government agents and white ranchers in their attempt to force the Indians onto established reservations.

This was climaxed by the range clearance program, with instances of brutal handling and slaughter of their livestock, which the Court, during trial, referred to as ‘horrible’, ‘monstrous’, ‘atrocious’, ‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency’. The Court firmly believed that the Indians were being wrongfully *926 driven from their ancestral homes, and suggested Presidential and Congressional investigations to determine their aboriginal rights. He threatened to conduct such an investigation himself. A public appeal on behalf of the plaintiffs was made for funds and supplies to be cleared through the Judge’s chambers.^[6] From his obvious interest in the case, illustrated by conduct and statements made throughout the trial, which need not be detailed further, we are certain that the feeling of the presiding Judge is such that, upon retrial, he cannot give the calm, impartial consideration which is necessary for a fair disposition of this unfortunate matter, and he should step aside.

Plaintiffs’ claims are asserted under the Federal Tort Claims Act. In applying this Act, everyone should be treated the same. Racial differences merit no concern. Feelings of charity or ideological sympathy for the Indians must be put to one side. The deep concern which the executive and legislative branches of the government should have for the plaintiffs does not justify the court in giving them any better or worse treatment than would be given to anyone else. As Justice Jackson said in his concurring opinion in Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 355, 65 S.Ct. 690, 700, 89 L.Ed. 985: ‘The Indian problem is essentially a sociological problem, not a legal one. We can make only a pretense of adjudication of such claims, and that only by indulging the most unrealistic and fictional assumptions.’

[***]

Reversed, and remanded for a new trial as to damages only.

Note 1. What did plaintiffs seek in terms of the value of their losses? How did the various adjudicators calculate the monetary amounts of the losses suffered? How did the theories of valuation differ, comparing the judges’ and the plaintiffs’ views?

Note 2. What does the court appear to be concerned about when it writes: “Any award for mental pain and suffering in this case must result from the wrongful taking of plaintiffs’ animals by agents of the United States, and nothing else”? What does it suggest was improper or erroneous about the awards made to the plaintiffs?

Note 3. This dispute took over a decade to resolve and is reported to have been the first time Native Americans successfully sued the U.S. government for intentional wrongdoing. Yet in its bitter-fought victory, there were many reversals and losses. The original District Judge, William Ritter, was deemed too sympathetic to the Indian cause and formally ousted over his own objections. The opinion you read describes Ritter, in a manner that is internally contradictory, or at a minimum, ambivalent. On the one hand, Ritter was “incensed and embittered,” but on the other hand the treatment of Native Americans was, in the court’s own words, replete with “brutal handling and slaughter of their livestock.” The court takes Ritter to task for the use of emotional language (“‘horrible’, ‘monstrous’, ‘atrocious’, ‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency”’) and suggests that he may be incapable of being “impartial” because of his belief that “Indians were being wrongfully driven from their ancestral homes.”

Considered through a contemporary lens, the opposite appears true. Indeed, Ritter fought to try to remain on the case:

The Tenth Circuit also suggested that the case be assigned to a new judge because the original judge was biased in favor of the Navajos. Judge Ritter ignored this suggestion. His answer to the government’s application for a special master to determine damages was that he did not intend to follow the Tenth Circuit’s suggestion that he step down, “so you can lay that to one side.” The government then applied to the Tenth Circuit for the entry of a judgment on the mandate prohibiting Ritter from retrying the case a third time. The Tenth Circuit ordered that Ritter “take no further action” in the case. Because at that time the U.S. District Court for the District of Utah had only a single sitting judge (Ritter), the Chief Judge for the Tenth Circuit, Alfred P. Murrah, assigned the case to Judge Ewing T. Kerr, U.S. District Judge for the District of Wyoming. A little over a year later, the case settled. The Navajo plaintiffs received $45,000 before deduction of attorneys fees, less than half the amount awarded them at the first trial ($100,000) and less than a quarter of what they had been awarded at the second trial ($186,017.50). Debora L. Threedy, United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict, 34 Am. Indian. L. Rev. 1, 7-8 (2009) (internal citations omitted).

The opinion is clear in its unstinting critique of Ritter. It is thus striking to see the opinion wrestling with the issue of the court’s positionality itself. In the final paragraph of the opinion, the court writes somewhat harshly that “[r]acial differences merit no concern”. The phrase seems intended to evoke neutrality by flattening racial differences. Yet its characterization of support for the Native American position is hardly neutral; the court minimizes critique of mass territorial dispossession as “[f]eelings of charity or ideological sympathy for the Indians.” In so doing, it frames the issue in a way that effaces the United States’ role in disrupting the sociopolitical status of Native Americans.

What exactly is the nature of the court’s arguments, as it refers to “the deep concern” that “should” exist in other branches of the government but that “does not justify” its own particular action? What is intended by the phrase “[t]he Indian problem is essentially a sociological problem, not a legal one”? Note that the premise that there is an “Indian problem” disclaims judicial responsibility for creating or maintaining the “problem,” and it reinforces the existing legal hierarchy. Describing it in this way situates the problem as somehow belonging to the population the U.S. government seeks to control; it becomes a problem “about” the Native Americans instead of being acknowledged as a problem produced by violence and dominion and the mobilization of vastly disparate power and resources to entrench the status quo.

Does the court have authority, descriptively, to do more than it seems to acknowledge? Normatively, should it? What questions would you need answered to think further about these issues? Is there a point to rhetoric that acknowledges judicial powerlessness, in cases where judges truly believe they cannot act as they may wish they could?