The opinion of the court was delivered by: Payne, J.
DATE OF JUDGMENT: 09/10/96
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: SURPLUS CITY WAS AWARDED $3,000 AS A RESULT OF YATES'S TRESPASS.
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART - 02/23/1999
MOTION FOR REHEARING FILED:
PROCEDURAL POSTURE AND ISSUES PRESENTED
¶1. Appellants, C.N. Thomas and Surplus City, U.S.A. sought damages for common law trespass against appellees, Harrah's Vicksburg Corporation and W.G. Yates and Sons Construction Co. After a trial on the merits, the jury found against Thomas as to both Harrah's and Yates and against Surplus as to Harrah's. The jury found for Surplus with respect to Yates and awarded nominal damages of $3,000. Because of the jury's finding of nominal damages only, the trial Judge refused to allow the jury to consider the issue of punitive damages. The trial court overruled Thomas' and Surplus' post-trial motions. Feeling aggrieved, Thomas and Surplus filed this joint appeal.
¶2. The primary issues presented for our review are as follows:
I. WHETHER THE TRIAL COURT ERRED IN DENYING THOMAS' AND SURPLUS' CHALLENGES OF THE SUFFICIENCY OF THE EVIDENCE
II. WHETHER THE JURY'S VERDICT AS TO THOMAS AND SURPLUS WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
III. WHETHER THE TRIAL COURT SHOULD HAVE CONSIDERED THE ISSUE OF PUNITIVE DAMAGES FOR THOMAS AND SURPLUS AGAINST HARRAH'S AND YATES
¶3. Upon our careful review of the record and related precedents and after thoughtful consideration of the arguments espoused in the oral arguments of this case, we affirm in part, and reverse, render, and remand in part for further action not inconsistent with this opinion.
¶4. This litigation stems from the development of Harrah's gambling facility in Vicksburg, Mississippi, beginning over five years ago and acts of trespass admittedly committed by Harrah's and Yates for an approximate six month period beginning in July 1993 and continuing through December 1993. The property in question is a vacant lot adjoining Surplus, which is a closely held corporation wholly owned by Thomas *fn1 . In 1993, the City of Vicksburg entered into a land sale agreement with Harrah's regarding certain property then owned by the City and other privately owned property that would be acquired by the City *fn2 and transferred to Harrah's. After unsuccessful purchase negotiations with Thomas, the City instituted eminent domain proceedings against Thomas for the property. Having previously begun construction of its gambling facility, Harrah's continued in this regard during the pendency of the eminent domain litigation *fn3 . Thomas and Surplus repeatedly asked Harrah's and Yates to refrain from trespassing on the Thomas/Surplus property; however, these requests were ignored by Harrah's and Yates *fn4 . After realizing that his attempts to protect his property from trespass clearly were futile, Thomas instituted this litigation in Warren County Chancery Court in September 1993, seeking to enjoin Harrah's and Yates from trespassing on the subject property. Upon the chancery court's finding that Thomas had an adequate remedy at law, Thomas moved and was allowed to transfer this action to the Warren County Circuit Court and Surplus was added as a plaintiff. A trial on the merits of the Thomas/Surplus claims for trespass was conducted where Thomas sought damages of $3,074.20 and Surplus sought damages of $30,600. Representatives of Harrah's and Yates' conceded that there was trespass on the Thomas/Surplus property. The jury returned no award for Thomas as to both Harrah's and Yates, and an award of nominal damages in the amount of $3,000 for Surplus against Yates and no award for Surplus against Harrah's. The trial court overruled Thomas' and Surplus' motion for JNOV or, in the alternative for additur or, in the alternative for a new trial. This appeal followed.
I. WHETHER THE TRIAL ERRED IN DENYING THOMAS' AND SURPLUS' CHALLENGES OF THE SUFFICIENCY OF THE EVIDENCE
¶5. Thomas and Surplus assert that the trial court erred in overruling their multiple challenges to the sufficiency of the evidence in this case. We employ the same standard of review as to all challenges to the sufficiency of the evidence, whether it be a motion for directed verdict, a request for a peremptory instruction, or a motion for JNOV. Henson v. Roberts, 679 So. 2d 1041, 1044 (Miss. 1996); Upton v. Magnolia Elec. Power Ass'n, 511 So. 2d 939, 942 (Miss. 1987). The trial Judge, in considering a motion for directed verdict, must weigh the evidence in the light most favorable to the non-moving party. Turnbough v. Steere Broadcasting Corp., 681 So. 2d 1325, 1326 (Miss. 1996); Fulton v. Robinson Industries, Inc., 664 So. 2d 170, 172 (Miss. 1995); Turner v. Wilson, 620 So. 2d 545, 550-51 (Miss. 1993). A motion for a directed verdict, operationally, takes the case from the jury. Therefore, such a motion is proper only if the non-moving party's evidence is so lacking that a reasonable and fair-minded jury would be unable to return a verdict in favor of the non-moving party. Tate v. Southern Jitney Jungle, 650 So. 2d 1347, 1349-50 (Miss. 1995); Turner v. Wilson, 620 So. 2d 545, 550-51 (Miss. 1993). In the case at bar, Thomas and Surplus moved for a directed verdict at the close of the appellees' case on the issue of trespass, and the motion was denied by the trial court.
¶6. Thomas and Surplus contend that the intent of the common law trespasser is irrelevant. They cite Kelley v. Sportsmens' Speedway, 224 Miss. 632, 644, 80 So. 2d 785, 791 (1955) as support for their contention. Kelley was a premises liability case and defined "trespasser" as "a person who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than, perhaps, to satisfy his curiosity." Id. at 791. Harrah's and Yates present Berry v. Player, 542 So. 2d 895 (Miss. 1989) in support of their position that negligence is the proper standard to apply. Berry dealt with a jury instruction under Miss. Code Ann. § 95-5-3 *fn5 concerning recoverable damages for cutting timber from private property. In that case the Mississippi Supreme Court found a negligence instruction proper. Id. at 900. Further, Harrah's and Yates urge that we should follow the rationale of Comet Delta, Inc. v. Pate Stevedore Co., 521 So. 2d 857 (Miss. 1988) and Leaf River Forest Products, Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995), where the Restatement (Second) of Torts § 822 negligence standard for nuisance was adopted with regard to trespass.
¶7. We think it instructive to briefly look at the historical basis for the trespass to land action. Professors Prosser and Keeton note that "[h]istorically, the requirements for trespass to land under the common law action of trespass were an invasion (a) which interfered with the right of exclusive possession of the land, and (b) which was the direct result of some act committed by the defendant." W. Page Keeton et al., Prosser and Keeton On Torts, § 13 at 67 (5th ed. 1984). Further, the tort of trespass to land can be committed by other than simply entering on the land; trespass occurs by placing objects on the property, by causing a third party to go onto the property, or by remaining on property after the expiration of a right of entry. Keeton § 13 at 72-73.
¶8. With regard to the requisite intent for trespass to land, the Restatement (Second) of Torts § 163 ...