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130 Colo. 560 PACIFIC REPORTER, 2d SERIES
<br />case on the theories of trespass and nui-
<br />sance impermissibly allowed the jury to
<br />award double damages, and that the com-
<br />pensatory damages were excessive because
<br />they were the product of passion and preju-
<br />dice. We disagree.
<br />In iu special verdict, the jury appor-
<br />tioned the damages, awarding E28.000 for
<br />deprivation of use and enjoyment of the
<br />property, evenly divided between Mr. and
<br />Mrs. Miller, and 872,OOD for "annoyance,
<br />discomfort, inconvenience, and loss of abili-
<br />tc wenjoy their lives," attributing 818,000
<br />to Mr. Miller and $54,000 to Mrs. Miller.
<br />[l, 2] Contrary to Carnation's conten-
<br />tion, damages for loss of use and enjoyment
<br />of property, on the one hand, and for an-
<br />noyance and discomfort, on the other hand,
<br />are not duplicative. The use and enjoy-
<br />ment of land is a proprietary interest, while
<br />annoyance and discomfort are personal, not
<br />proprietary, interesu. In iu remittitur the
<br />trial court correctly limited recovery for
<br />loss of use and enjoyment to the loss of
<br />rental value occasioned by the invasion.
<br />This distinction between the elemenu of
<br />damage leads to the rule that the owner of
<br />land who is not an occupant map recover
<br />only for the impaired value of his property,
<br />while an occupant-owner may recover both
<br />his proprietary and personal loss. Restate-
<br />ment of Torts, § 929, Comment g; Restate-
<br />ment (Second) of Torts, § 929, Comment e
<br />(Tent. Draft No. 19).
<br />[3.4] Asserting that it is impossible to
<br />tell under which theory the jury made iu
<br />award, Carnation cites Mosher v. Schumm,
<br />114 Colo. 441. 166 P.2d 559 (1946), and Oss-
<br />man v. Mountain States Tel. & Tel. (:o., 184
<br />Colo. 360, 520 P?d 738 (1974), as requiring a
<br />reverse! of the verdict for compensatory
<br />damages. Such reliance is misplaced.
<br />These canes stand for the proposition that a
<br />general verdict must be stricken when a
<br />case is erroneously submitted m the jury on
<br />two claims for relief, one of which is clearly
<br />inappropriate. However, the present rase
<br />was tried and submitted on the theories of
<br />trespass and nuisance, and the jury re-
<br />turned but one verdict on compensatory
<br />damages. Caznation does not argue that
<br />the Millers failed to establish a prima facie
<br />rase on either claim, Miller .•. Carnation,
<br />supra, and since the award embodied in the
<br />special verdict requested by Carnation is
<br />supportable under either theory, it must
<br />stand.
<br />Carnation also maintains that the com-
<br />pensatory damages were excessive in that
<br />they were the result of the passion and
<br />prejudice of the jury, and further, that the
<br />jury mold not award damages based on
<br />annual lose, since flies were a problem only
<br />during warm months. The first point is
<br />without meet, and the second misconstrues
<br />the nature of the damages awarded.
<br />[5] The trial court ordered remittitur on
<br />the element of loss of usage and enjoyment
<br />of the property, not because the jury ver-
<br />dict resulted from passion or prejudice, but
<br />because it exceeded the maximum awarda-
<br />ble amount. The jury was not instructed
<br />on the method or limiu for amving at this
<br />figure, and the trial judge's order indicates
<br />that the court iuelf had not determined the
<br />proper method of computation prior to the
<br />hearing on the motion fora new trial.
<br />Thus, Carnation's argument that the excess
<br />can be attributed only to improper jury
<br />considerations is unsound. The trial court
<br />siu in a much better position than we to
<br />judge the propriety of a verdict. Here the
<br />trial court exercised iu durretion in order-
<br />ing the remittitur, and we are not able to
<br />say that the judgment as entered is grossly
<br />and manifestly excessive. Bohlender v.
<br />Oster, 165 Colo. 164, 439 P2d 999 (1968).
<br />Neither is there substance to Carnation's
<br />additional contentions that the damage
<br />awards were predicated on other alleged
<br />irregularities omutring during the course of
<br />trial.
<br />[6] Carnation's argument that the unre-
<br />mitted damages for annoyance and discom-
<br />fort were improperly predicated on an an-
<br />nual basis when they should have been lim-
<br />ited to those months when flies were at
<br />their most numerous is not well taken.
<br />These damages, unlike those sustained in
<br />the loss of use and enjoyment of the proper-
<br />ty, are not suffered on a weekly, monthly,
<br />
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