Raposa v. Guay, 2511

• Decision Date: 09 August 1956
• Docket Number: No. 2511,2511
• Citation: 125 A.2d 113,84 R.I. 436
• Parties: Josephine RAPOSA v. Arthur GUAY. Eq.
• Court: Rhode Island Supreme Court

Page 113

125 A.2d 113

84 R.I. 436

Josephine RAPOSA v. Arthur GUAY.

Eq. No. 2511.

Supreme Court of Rhode Island.

Aug. 9, 1956.

Paul M. Chappell, Portsmouth, for complainant.

Corcoran, Peckham & Hayes, Edward B. Corcoran, Newport, for respondent.

CONDON, Justice.

This is a bill in equity to enjoin the respondent from continuing to trespass on the complainant's land. The cause was heard in the superior court on bill, answer and proof, and thereafter a decree was entered granting the injunction but requiring the complainant to pay the respondent $1,250 for a partially constructed building which the trial justice found had been erected by respondent on complainant's land 'in good faith by reason of an innocent mistake.' From such decree the complainant has appealed to this court.

She contends that the trial justice erred in granting respondent affirmative relief, because it was not properly before him on the answer to the bill. She further contends that if such relief were properly before him, the evidence does not show that respondent acted in good faith and as a result of an innocent mistake. On the contrary she claims that the evidence shows a flagrant disregard by him of the property rights of others in the face of warnings that he was building on the wrong tract of land. She also claims that the evidence shows she did not sit back and allow him to make improvements on her land but that she actively voiced her objections thereto.

The bill of complaint alleges that complainant has owned a certain parcel of land on Brayton Road in the town of Tiverton since November 22, 1952; that she received title thereto from Thomas G. Gesner; that respondent Arthur Guay has erected a building on such parcel, made excavations, cut down trees, and committed other trespasses of a continuing nature; and that he threatens further trespasses. It is also alleged in the bill that he was notified of such trespass on March 26, 1953 and ordered to cease; that on numerous occasions prior to such date complainant's husband Joseph S. Raposa, acting on her behalf, also so notified respondent; and that, by reason of respondent's said unlawful acts, complainant fears further like trespasses will be committed by respondent with irrevocable damage to her for which she is and will be remediless at law.

The bill seeks no damages for such trespasses but only that respondent be restrained and enjoined temporarily and permanently from further trespassing upon or otherwise interfering with complainant's use and enjoyment of her land. After the bill was filed a temporary restraining order was duly entered. Later, after a hearing, such order was continued in effect pending a determination of the cause on the merits.

The respondent filed an answer in which he neither admitted nor denied any allegation in the bill but left complainant to her proof. The answer concluded with a prayer that respondent be dismissed with his costs. However, at the hearing on the merits respondent presented a written motion for leave to amend his answer. This motion is among the papers in the case, but bears no file mark. Over complainant's objection the trial justice granted the motion, but no amended answer was filed and the jacket of the case does not bear any record of the trial justice's action on the motion to amend.

In the circumstances it appears that the allegations in the motion itself were treated as actual amendments to the answer on file. Those allegations are: '1. That the complainant has not come into court with clean hands. 2. That the complainant has been guilty of laches. 3. That the complainant purchased the said lot knowing that the respondent's building was on it, or by the exercise of ordinary care should have known it. Wherefore the respondent prays that he may be granted any affirmative relief as in the circumstances may appear just and reasonable to this Honorable Court.' Over complainant's further objection the trial justice allowed respondent to present evidence de bene in support of his claim for affirmative relief. The portion of the decree granting respondent relief, from which complainant has appealed, is based upon the evidence received by the trial justice under such procedure. For this reason complainant argues that that part of the decree is against the law.

Such procedure was not in accordance with established rules of equity practice or with the statutes of this state modifying those rules. After respondent filed his answer and complainant did not except or reply thereto within ten days the cause was considered as set down for hearing on the bill and answer. General Laws 1938, chapter 528, § 8. As the pleadings then stood the only issue raised thereby was whether respondent was guilty of the trespasses alleged and should be enjoining from continuing them. Therefore, at the hearing on the merits complainant had no reason to foresee and prepare to defend other issues involving respondent's claim of right to affirmative relief.

The respondent could have raised such issues by a cross bill. And by virtue of G.L.1938, chapter 528, § 13, he could have raised them in his answer, but if he had done so complainant would have been entitled under § 6 of that chapter to written notice of the filing thereof and ten days within which to except or reply thereto. In the absence of a statute granting respondent the right to seek affirmative relief in his answer, ordinarily there is no such right. 30 C.J.S., Equity, § 331, p. 750. To serve as a cross bill for that purpose the answer should possess all the elements of such a bill and the cross defendant must be given an opportunity and reasonable time to answer. 30 C.J.S., Equity, §§ 386, 387, p. 799. The granting of respondent's motion to amend deprived complainant of such rights and compelled her to meet unprepared wholly new issues.

We think the procedure followed here was without warrant of any rule or statute of which we are aware and was prejudicial to complainant's rights. The trial justice was authorized to entertain respondent's motion to amend even after the pleadings had been closed, but he should have required respondent to file a formal amended answer and have fixed a time within which in compliance with the statute complainant could reasonable exercise her right to except or reply or to file an answer to that portion of the respondent's amended answer which was in the nature of a cross bill. In the circumstances, therefore, we must hold that the portion of the decree granting respondent affirmative relief is illegal and void.

Ordinarily this would be decisive of the appeal before us as a matter of procedure without reference to the merits, but since complainant has come into a court of equity seeking its aid there may be a question whether respondent was entitled to be heard under his answer as filed on the question of complainant's unjust enrichment. It is a well-recognized practice of courts of equity as a condition to decreeing the complainant the relief sought by the bill of complaint to accord to the respondent whatever equitable rights he may have, even though not demanded by a cross bill, and to give him relief to protect and enforce such rights. 30 C.J.S., Equity, § 602, p. 993. The basis for such action is the maxim that 'He who seeks equity must do equity.'

Assuming without deciding that in the circumstances of the case at bar respondent was entitled to invoke that principle, we have inquired into the merits to determine whether the specific relief granted to respondent was contrary to the law or the evidence. After carefully considering the evidence and the law applicable thereto, we are of the opinion that the trial justice erred in ordering complainant to pay respondent $1,250 for the partially completed house which he had mistakenly erected on her land.

It appears from the evidence that such land was originally owned and farmed by Thomas G. Gesner who had a small building or shack thereon. Sometime in the latter part of 1952 complainant, through her husband Joseph S. Raposa, was negotiating to purchase the land. Finally on November 22, 1952 Gesner conveyed it to her by warranty deed. Adjoining it on the south is another tract of land belonging to Edward Burke. The respondent was negotiating during the summer of 1952 to purchase that land and finally on December 17, 1952 obtained a conveyance thereof by deed of Thomas F. Burke, administrator of the estate of Edward Burke.

A permit to erect a house upon the land was issued to the respondent on June 14, 1952, he having obtained the owner's consent to start building on the land before the deen to him was ready for delivery. The respondent testified that he started to build in July 1952, but a certified copy of the building permit which is in evidence bears the notation, 'Not built Sept/52.' In any event it appears that on two...