Somerville v. Jacobs

• Decision Date: 02 December 1969
• Docket Number: No. 12770,12770
• Citation: 170 S.E.2d 805,153 W.Va. 613
• Court: West Virginia Supreme Court
• Parties: W. J. SOMERVILLE et al. v. William L. JACOBS et al. and Farmers Building and Loan Association, acorporation, Intervenor.

Page 805

170 S.E.2d 805

153 W.Va. 613

W. J. SOMERVILLE et al. v. William L. JACOBS et al. and Farmers Building and Loan Association, acorporation, Intervenor.

No. 12770.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1969.

Decided July 1, 1969.

Dissenting Opinion July 22, 1969.

Rehearing Denied Dec. 2, 1969.

Syllabus by the Court

An improver of land owned by another, who through a reasonable mistake of fact and in good faith erects a building entirely upon the land of the owner, with reasonable belief that such land was owned by the improver, is entitled to recover the value of the improvements from the landowner and to a lien upon such property which may be sold to enforce the payment of such lien, or, in the alternative, to purchase the land so improved upon payment to the landowner of the value of the land less the improvements and such landowner, even though free from any inequitable conduct in connection with the construction of the building upon his land, who, however, retains but refuses to pay for the improvements, must, within a reasonable time, either pay the improver the amount by which the value of his land has been improved or convey such land to the improver upon the payment by the improver to the landowner of the value of the land without the improvements.

Richard F. Pence, Parkersburg, for appellants.

Wilson & Hill, George W. Hill, Jr., Burk & Bayley, Robert W. Burk, McDougle, Davis & Morris, Fred L. Davis, Parkersburg, for appellees.

HAYMOND, President:

The plaintiffs, W. J. Somerville and Hazel M. Somerville, herein sometimes referred to as the plaintiffs, the owners of Lots 44, 45 and 46 in the Homeland Addition to the city of Parkersburg, in Wood County, believing that they were erecting a warehouse building on Lot 46 which they owned, mistakenly constructed the building on Lot 47 owned by the defendants, William L. Jacobs and Marjorie S. Jacobs, herein sometimes referred to as the defendants. Construction of the building was completed in January 1967 and by deed dated January 14, 1967 the Somervilles conveyed Lots 44, 45 and 46 to the plaintiffs Fred C. Engle and Jimmy C. Pappas who subsequently leased the building to the Parkersburg Coca-Cola Bottling Company, a corporation. Soon after the building was completed but not until then, the defendants learned that the building was on their property and claimed ownership of the building and its fixtures on the theory of annexation. The plaintiffs then instituted this proceeding for equitable relief in the Circuit Court of Wood County and in their complaint prayed, among other things, for judgment in favor of the Somervilles for $20,500.00 as the value of the improvements made on Lot 47, or, in the alternative, that the defendants be ordered to convey their interest in lot 47 to the Somervilles for a fair consideration. The Farmers Building and Loan Association, a corporation, the holder of a deed of trust lien upon the land of the defendants, was on motion permitted to intervene and be made a defendant in this proceeding.

The circuit court considered the matter upon motions of the defendants for judgment in their favor; the separate answers and the counterclaims of the defendants; the interrogatories and the answers to the interrogatories; the depositions of the defendants; and agreed statement of the facts by all parties; and the respective motions of the plaintiffs, the Somervilles, and the defendants for summary judgment.

By final judgment rendered June 11, 1968, the circuit court required the defendants within 60 days to elect whether they would (1) retain the building and pay W. J. Somerville $17,500.00 or suffer judgment against themselves in his favor in that amount, or (2) convey title to Lot 47 of Homeland Addition to W. J. Somerville for the sum of $2,000.00 cash. From that judgment this Court granted an appeal and supersedeas upon application of the defendants on October 17, 1968.

This case was submitted for decision upon the record of proceedings in the trial court and the briefs and the oral arguments in behalf of the defendants. The brief in behalf of the plaintiffs, not having been filed within the time required by the provisions of Rule VI of this Court and the defendants having refused to waive the requirement of the rule, oral argument in behalf of the plaintiffs was not permitted upon the submission of the case.

As previously indicated the material facts, which are not disputed, were stipulated and set forth in the agreed statement of the attorneys representing the parties, and the questions presented for decision are questions of law.

The stipulation concerning the facts is in this form:

',1. The plaintiffs, W. J. Somerville and Hazel M. Somerville, in mistaken reliance upon a surveyor's report and plat, constructed the building described in the Complaint upon Lot No. 47 of Homeland Addition to the City of Parkersburg, in Wood County, west Virginia, believing that they were constructing the building upon Lot No. 46 of said addition.

'2. Lot No. 47 was and still is owned by the defendants as joint tenants with the right of survivorship, title to said Lot No. 47 having been acquired by William L. Jacobs and Marjorie S. Jacobs by Deed dated February 21, 1966, and duly admitted to record in the Office of the County Clerk of Wood County, West Virginia, on March 14, 1966, as appears of record in Deed Book 513, at Page 317.

'3. The defendants were not aware of the fact that said building had been constructed on their property until after the completion of said building by the plaintiff, W. J. Somerville, its purchase by the plaintiffs, Fred C. Engle and Jimmy c,. Pappas, and its occupancy as a tenant by the plaintiff corporation, Parkersburg Coca-Cola Bottling Company.

'4. The fair market value of said Lot No. 47 immediately prior to the erection of said building was $2,000.00.

'5. The fair market value of said Lot No. 47 immediately subsequent to and by reason of the erection of said building was $19,500.00.

'6. By deed dated January 14, 1967, the plaintiffs, W. J. Somerville and Hazel M. Somerville, who are husband and wife, conveyed to the plaintiffs, Fred C. Engle and Jimmy C. Pappas, Lots 44, 45 and 46 of said Homeland Addition under the mistaken belief that the warehouse building described in the complaint was situate on Lot 46, for a total purchase price of $19,500.00, and the plaintiffs Engle and Pappas paid the plaintiffs, W. J. Somerville and Hazel M. Somerville the said sum of $19,500.00 under the mistaken belief that said warehouse was situate on said Lot 46.

'7. The plaintiffs, Fred C. Engle and Jimmy C. Pappas, leased the said warehouse building to the plaintiff, Parkersburg Coca-Cola Bottling Company beginning as of January 1, 1967, and continuing up until the time of the filing of this action for a monthly rental of $250.00, that being the fair rental value of said warehouse building.

'8. Since the filing of the above styled action, the plaintiff, W. J. Somerville, has constructed on said Lot 46 a warehouse building identical with the one previously constructed by him on said Lot 47 and the plaintiff, Parkersburg Coca-Cola Bottling Company is now occupying said building as a tenant and paying to the plaintiffs, Fred C. Engle and Jimmy C. Pappas the sum of $250.00 as a monthly rental on said premises pursuant to the terms of the lease to which reference is hereinabove made.'

The controlling question for decision is whether a court of equity can award compensation to an improver for improvements which he has placed upon land not owned by him, which, because of mistake, he had reason to believe he owned, which improvements were not known to the owner until after their completion and were not induced or permitted by such owner, who is not guilty of any fraud or inequitable conduct, and require the owner to pay the fair value of such improvements or, in the alternative, to convey the land so improved to the improver upon his payment to the owner of the fair value of the land less the value of the improvements.

Though there are numerous decisions by this Court relating to improvements to land, the precise question here involved is one of first impression in this jurisdiction. The statute dealing with allowance for improvements to real estate, Article 5, Chapter 55, Code, 1931, provides for allowance for improvements only to a defendant against whom a decree or judgment shall be rendered for land where no assessment of damages has been made and permits such defendant, at any time before the execution of a decree or judgment, to present a petition to the court rendering such decree or judgment praying that he may be allowed the fair and reasonable value of such improvements. That statute has no application to the facts of this case, and this case, for that reason, is not within the statute. Green v. Mullins, 146 W.Va. 958, 124 S.E.2d 244.

Though the precise question here involved has not been considered and determined in any prior decision of this Court, the question has been considered by appellate courts in other jurisdictions and though the cases are conflicting the decisions in some jurisdictions, upon particular facts, recognize and sustain the jurisdiction of a court of equity to award compensation to the improver to prevent unjust enrichment to the owner and in the alternative to require the owner to convey the land to the improver upon his payment to the owner of the fair value of the land less the improvements.

In the early case of Bright v. Boyd, 4 Fed.Cas. p. 127, No. 1875, 1 Story 478 and 4 Fed.Cas. p. 134, No. 1876, 2 Story 605, a Federal trial court held in an opinion by Justice Story that an improving occupant could institute and maintain a suit in equity to secure compensation for his improvements on land of the owner and that as a doctrine of equity an innocent purchaser for valuable consideration, without notice of any infirmity in his title, who by his...