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<br />P.7d
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<br />373.
<br />fern
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<br />573
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<br />.ing
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<br />is
<br />Ct.
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<br />MILLER v. CARNATION CO. Colo. 127
<br />m ar ~^~~~.~' W ~~ 137
<br />See American Metal Climu, fns v. Claim- lion of an egg ranch on adjoining property,
<br />ant in re Death of Butler, 188 Colo. 116, 532 the Adams District Court, Merle R. Knous,
<br />P.2d 951 (1975). Thus, we conclude that for J., entered judgment for plaintiffs, and de-
<br />purposes of judicial review in this rase, the Pendant appealed. The Court of Appeals,
<br />county board was an indispensable party Kelly, J., held that: (1) damage for loss of
<br />under §7.4-4-106(4), C.RS. 1973. These- ~e and enjoyment of property, on the one
<br />fore, the trial court's dismissal for failure to hand, and for annoyance and dixomfort, on
<br />join the county board was correct Hidden the other, ale not duplicative, (2) where
<br />Lake Development Co. v. District Court, plaintiffs established a prima facie ts3se of
<br />super nuisance a well a trespass, the wmpensa-
<br />[7, 8] Appellants last maintain that even wry damages award, supportable under ei-
<br />if the county board was an indispemable ther theory, would not be disturbed, (3)
<br />party, their requnt for judicial review was there was evidence [o support an exemplary
<br />nevertheless perfected in timely fashion. damages instuvction, and the court's action
<br />However, part of the perfection of an ac- in not setting aside such award, depite its
<br />Lion for judicial review include the joinder disagreement with the verdict, was there-
<br />of indispensable Partin. City and County fore not improper, (4) there was sufficient
<br />of Deaver v. District Court, Colo., 560 P?d evidence of defendant's wanton and reclc-
<br />1088 (1975). Therefore, the statutory peri- less disregard of plaintiffs' righu to justify
<br />od within which a petition for judicial re- submission of the exemplary damages qne-
<br />view was required to be filed had expired. Lion w the jury, and (5) internt on the
<br />Section 39~-108(2), C.R.S. 1973. award for annoyance and discomfort was
<br />The judgment dismissing appellants' tom- retwverabl.: from the date the complaint
<br />plaint is affirmed. was filed.
<br />ENOCH aad RULAND, JJ., concur.
<br />w
<br />n SIn IIUY&ISfSiEa
<br />H. J. MD..LER and Sondra Miller,
<br />Plaintiff~Appellen,
<br />v.
<br />CARNATION COMPANY, a Delaware
<br />Corporation, and Albers Milling Compa-
<br />ny, a Deh.rsre Corporation, a division
<br />thereof, d/b/a Brighton Egg Company,
<br />Defeodante-Appeilanm
<br />No. 75167.
<br />Colorado Court of Appeals,
<br />Div. III.
<br />Feb. 3, 1977.
<br />Rehearing Denied March 3, 1977.
<br />Certiorari Denied May 16, 1977.
<br />In a damages action for trnpass and
<br />nuisance arising out of defendant's opera-
<br />Judgment affirmed in part, reversed in
<br />pan, and cause remanded with directions.
<br />L NuiearEee ad42
<br />Trnpaea ae 16
<br />Damages for Ioss of use and enjoyment
<br />of property, on the one hand, and for an-
<br />noyance and discomfort, on the other, are
<br />not duplicative and are recoverable by the
<br />owner/oceupant of ]and injured by activi-
<br />tie which constitute either a nuisance, a
<br />trespass, or both.
<br />2 Nuisance X50(1)
<br />Trnpass X47
<br />In a suit brought on theorie of tres-
<br />peas and nuisance, a landowner who is not
<br />an oceupant may recover only for the im-
<br />paired value of the property, while an oav-
<br />pant owner may recover both his proprie-
<br />tary and personal loss.
<br />3. Trial x=330(3)
<br />A general verdict must be stricken
<br />when a case ti erroneously submitted to the
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