In Divito v Post, an unpublished Michigan Court of Appeals Opinion, the defendant built a retaining wall whose footings were on her property but which leaned, over time, over the Plaintiff’s property. The Plaintiffs sued, claiming the installation of the retaining wall caused erosion on their property and that the retaining wall was a trespass. The trial court dismissed the case entirely and the Plaintiffs appealed.
On appeal, the court held that the trial court erred by finding that no trespass occurred, because the evidence showed that the wall did in fact lean over the Plaintiff’s property. However, the court found that requiring removal of the wall would impose harm and hardship on the defendant, and that Plaintiffs had proven no actual damages because of the trespass. The court reversed and remanded the case to the trial court for an award of nominal damages for the trespass.