Raab v. Casper

• Decision Date: 01 October 1975
• Citation: 124 Cal.Rptr. 590,51 Cal.App.3d 866
• Court: California Court of Appeals Court of Appeals
• Parties: Betty Jo RAAB and Marie L. Forrester, Plaintiffs, Cross-Defendants and Appellants, v. Bernard V. CASPER and Betty R. Casper, his wife, Defendants, Cross-Complainants and Respondents. Civ. 14553.

Page 590

124 Cal.Rptr. 590

51 Cal.App.3d 866

Betty Jo RAAB and Marie L. Forrester, Plaintiffs, Cross-Defendants and Appellants, v. Bernard V. CASPER and Betty R. Casper, his wife, Defendants, Cross-Complainants and Respondents.

Civ. 14553.

Court of Appeal, Third District, California.

Oct. 1, 1975.

Wallace T. Hyde, Sacramento, for plaintiffs, cross-defendants and appellants.

Patrick J. Riley, Placerville, for defendants, cross-complainants and respondents.

FRIEDMAN, Acting Presiding Justice.

Plaintiffs and defendants own adjoining foothill tracts acquired through a common grantor. Plaintiffs' parcel, about 20 acres in size, is longitudinally shaped, with its narrow dimension at the north and south ends. Mr. and Mrs. Casper, the defendants, own two separate parcels, immediately to the west, one of three and one-half acres adjoining the northern portion of plaintiffs' tract, another of four and one-half acres adjoining the southern portion. Plaintiffs' amended complaint sought a mandatory injunction and damages; it alleged in effect two separate, continuing trespasses by defendants; defendants had built a 25 by 35-foot cabin entirely on plaintiffs' land, at its northwest corner near the northerly end of the common boundary; toward the southerly end of the common boundary, defendants had built a family home, approximately one-third of the premises being located on plaintiffs' land.

According to the findings, the common north-south boundary had never been surveyed or marked; the true boundary had been established through a survey by Harvey Butler filed for record in April 1972; ¹ commencing in January 1970, defendants started building a small house (i.e., cabin), which was actually located across the boundary, at the northwest corner of plaintiffs' land. The court also found that in September 1970 plaintiffs complained to defendants that they believed the cabin was located on plaintiffs' property; at that time Casper had completed the foundation, exterior walls, roofs and interior partitions, septic tank and leachline, but not the interior work; Casper continued with construction of the cabin and completed it; defendants did not take the cabin site by adverse possession; defendants had not acted maliciously or willfully, but believed in good faith that they were building the cabin on their own property.

As to the cabin built at the northwestern corner of plaintiffs' land, the court concluded that defendants were good faith improvers. (See Code Civ.Proc., §§ 871.1--871.7.) Its judgment realigned the northerly common boundary to give defendants the .287 acres where their cabin was situated; awarded plaintiffs $700 as compensation for the reasonable value of the land, $500 for the cost of a survey, $750 attorney's fee and $70 per year rent until entry of judgment (slightly less than three years). Plaintiffs appeal.

Much of plaintiffs' brief on appeal consists of an evidentiary attack on the findings, including that which fixed $700 as the value of the cabin site awarded defendants. This court adheres to the rule which prevents appellate inquiry into evidentiary conflicts and requires the acceptance of trial court findings which are supported by substantial evidence. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925--926, 101 Cal.Rptr. 568, 496 P.2d 480.) Plaintiffs' claim of inherently improbable evidence has no merit. Nevertheless, the findings and judgment are characterized by several prejudicial errors of law which require reversal.

The good-faith-improver legislation (Code Civ.Proc., § 871.1 et seq.) was enacted in 1968. A 'good faith improver' is defined as one who makes an improvement to land in good faith and under a mistaken belief that he is the landowner. (Code Civ.Proc., § 871.1.) Such an improver may seek judicial relief but has the burden of establishing his entitlement to relief; the 'degree of (his) negligence' should be taken into account in determining his good faith and in determining what belief is consistent with substantial justice. (Code Civ.Proc., § 871.3.) ² The court may not grant relief if a setoff or right of removal would accomplish substantial justice. (Code Civ.Proc., § 871.4.) Subject to this limitation, the court may effect such adjustments in the parties' positions as are consistent with substantial justice under the circumstances; the relief shall protect the injured owner against pecuniary losses (including litigation expense) but avoid his unjust enrichment; in shaping relief, the court may consider the injured owner's future plans and his need for the land. (§ 871.5.)

We find no case law construing this legislation. It possesses decisional ancestry in the equity doctrine which grants damages but denies injunctive relief against an innocent encroachment which could be removed only at heavy cost and which does not cause irreparable damage to the injured landowner. (Brown Derby Hollywood Corp. v. Hatton, 61 Cal.2d 855, 858, 40 Cal.Rptr. 848, 395 P.2d 896; Donnell v. Bisso Brothers, 10 Cal.App.3d 38, 45--46, 88 Cal.Rptr. 645.) It may, on occasion, be tied to the law which permits removal of fixtures erroneously and in good faith attached to the land of another. (Civ.Code, § 1013.5.)

The 1968 law adds a synthetic, somewhat alien ingredient to the concept of good faith. In its traditional sense good faith connotes a moral quality; it is equated with honesty of purpose, freedom from fraudulent intent and faithfulness to duty or obligation. (People v. Nunn, 46 Cal.2d 460, 468, 296 P.2d 813; see 18A Words and Phrases (Perm.Ed.1956), p. 83 et seq.) Code of Civil Procedure section 871.3 declares that the improver's 'degree of negligence' should be taken into account in determining his good faith and in shaping the relief. Thus, in applying this particular legislation, good faith becomes an artificial attribute, calling for a measure of care as well as honesty. Lack of care as well as dishonesty may negate or diminish good faith. Moreover, section 871.3 calls for consideration of the degree of negligence. Without evoking conventional choices between ordinary and gross negligence, the statute invites consideration of varying intensities of negligence.

Accustomed as judges and lawyers are to equating good faith with honesty, we are not likely to consider the element of negligence unless it is specifically demanded. In a good-faith-improver suit, a set of trial court findings which omits mention of negligence becomes suspect. It supplies the reviewing court no means of ascertaining whether the trial judge really considered the improver's negligence. Failure to find on a material issue is a fundamental defect, requiring reversal. (See cases cited 4 Witkin, Cal.Procedure, § 337, p. 3139.)

Here the trial court found that defendants 'did not act maliciously, intentionally or willfully in constructing the small house (cabin), but acted in the good-faith belief that they were constructing said house on their property.' The lack of any reference to negligence arouses appellate suspicion that negligence may have been neglected.

The suspicion is confirmed by evidence supporting an inference of negligence on the part of Mr. Casper, who built the cabin. Some ten years earlier he had indulged in assumptions regarding the boundary line to the south; these assumptions had led him to install part of the yard around his home, part of his driveway and utility lines on the land of plaintiffs. He admitted on the witness stand that he had never known or ascertained the location of the property corners. He had extrapolated his easterly boundary from a line between a jack pine and a manzanita tree; he based this belief on an oral statement made by the seller when he bought the land in 1959. In September 1970 plaintiffs first observed Mr. Casper's partially completed cabin and warned him that he was building on their property. Up to that point he had spent $1,956.28 on the cabin. He disregarded the warning and spent an additional $2,206.85 to complete the cabin. He did so without a survey and without offering to share in the cost of a survey. Plaintiffs spent $1,757.20 for the survey, which the trial court later accepted as the true boundary line.

There is an analogy here to the encroachment decisions which point out that continuation of the offending construction in defiance of the injured owner's opposition is inconsistent with good faith. (Brown Derby Hollywood Corp. v. Hatson, supra, 61 Cal.2d at p. 859, 40 Cal.Rptr. 848, 395 P.2d 896; City of Dunsmuir v. Silva, 154 Cal.App.2d 825, 828, 317 P.2d 653.) The good-faith-improver legislation of 1968 was drafted and submitted by the California Law Revision Commission, which accompanied section 871.1 with a comment fully consistent with the good faith concept described in the encroachment decisions. We append the Law Revision Commission's comment in the margin. ³

At this juncture of the case the findings declare: 'That at the time of commencement of the construction of the small house, Defendant reasonably believed he was building the same on his land and had made reasonable effort to confirm that fact.' The declaration is pregnant with an admission that at some later time defendants no longer possessed that reasonable belief. Whatever defendant Casper's good faith and whatever his reasonable care preceding the warning of September 1970, these elements underwent a transformation after he received that warning.

This appeal presents the precise situation described in the Law Revision Commission's comment (fn. 3, supra), that is, a project characterized by good faith at its inception (according to the trial court findings) but suffering a shift in that characteristic when a warning of possible trespass or encroachment is received before completion. In choosing to proceed with his project in the face of the owner's warning, the improver exposes the owner to injury not measurable in dollars alone. The owner may ultimately receive the reasonable...