The law, in seeking an adequate remedy for the wrong of trespass, has been forced to adopt profits received, rather than damages sustained, as a basis of recovery.
A husband and wife operated a cave as a tourist attraction. Part of the cave was under the neighbor's property. The neighbor brought suit for damages, an accounting of the profits which resulted from the operation of a cave, and an injunction prohibiting the husband and wife from further trespassing upon or exhibiting any part of the cave under the neighbor's land. The trial court found the neighbor entitled to recover the proportionate part of the net proceeds received by the husband and wife. The case was appealed to the Court of Appeals of Kentucky.
Was the neighbor entitled to damages caused from the tourist attraction?
The court noted that the case was one of first impression in Kentucky and the court was therefore left to fundamental principles and analogies. The court held that the law, in seeking an adequate remedy for the wrong, had been forced to adopt profits received, but not damages sustained, as the basis of recovery. Accordingly, the court held that the neighbor was entitled to receive a proportionate share of the net profits from the operation of the cave. The court noted that the trial court had made a mathematical error in computing the damages and reversed on that basis.