No. 91-331 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

ELSIE S. STORMS, in her capacity as Trustee of EL-CE Storms Trust, Plaintiff and Appellant,

-vsJOSEPH E. BERGSIEKER; SUSAN NOUCHI; ERLING BIRKLEY; HELEN H. SUTHERLAND; JARED TIPTON WILMARTH; CONNIE M. VOUTIS; A.K. ROSS; JERRY HICKMAN; and DOES I through X, inclusive, Defendants and Respondents.

APPEAL FROM: District Court of theNinteenth Judicial District, 

### In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: Elsie S. Storms, Pro Se, Trego, Montana. For Respondent: Daniel 

### W. Hileman; Murray & Kaufman, Kalispell, Montana Patrick M. Springer,Attorney at Law,Kalispell, Montana.
submitted on ~riefs:January 30, 1992 Decided: July 28, 1992 Filed:



### I ClerkJustice Fred J. Weber 

### delivered the opinion of the Court.

In theNineteenth Judicial

### District 

### Court 

### forLincoln County, plaintiff sued to recover a contribution from the co-owners of 

### an easement covering the replacement cost of a bridge

### which provided

access to the defendants1 properties. The defendants Nouchi, SunderlandandWilmarth (defendants)

### ,moved for adirected verdict. Themotionwas granted 

### and judgmentwas entered 

### for thedefendants. Plaintiff appeals. We reverse and remand. The controlling 

### issue 

### is the following: Did the District Court properly grant a directed verdict for the defendants? All of theparties 

### tothis action are adjacent landowners

### near Trego,Montana. Access to all of the parties properties isby use of an easement road

### which 

### includesabridge crossingFortineCreek. Following is a summaryof key factsagreed to

### by all of theparties

as contained 

### in the pretrial order: 1. Construction of the bridge spanning Fortine Creek was started 

### by Cecil H. Storms, husband of the 

### plaintiff 

### on about 

### August 20, 1987,and completed on about September 27, 1987. 2. 

### The bridge 

### is located 

### upon the property 

### of 

### the plaintiff trust. 3. During the time 

### of bridge 

### construction, 

### the defendants



### were owners as tenants 

### in common of 

### an easement road 

### which begins at the paved road used by the public known as 

### the Fortine Creek Road, and crosses the plaintiff8sproperty and Fortine Creek by



### means of a single lane bridge. 24. As a result of the described court action in Lincoln County, defendants and their spouses onApril 3, 1985, obtained a judgment granting them an easement which provided approach totheir properties across the Stormsproperty, including the right to use the Fortine Creek bridge. In the pretrial order the plaintiff contended that the expenditures for labor and materials for construction of the new bridgewere reasonableand necessary and amounted to approximately $19,000. She further stated that theprevious bridge structurehad deteriorated, and therefore, was no longer safe and needed to be replaced. Next, the plaintiff contended that it would be inequitable and unfair and would result in unjust enrichment to allow the defendants to receive an increase in value of their properties as a result of the completion of the bridge project without requiring the defendants toproportionately contribute to the cost of the bridge. In the same pretrial order the defendants stated that the issue was whether the defendants had been unjustly enriched by construction of the bridge and if so what amount of damages was owed from defendants to the plaintiff. The District Court stated that the pretrial order superseded the pleadings and would govern the course of the trial. Plaintiff sought a jury trial. Defendants filed a motion to dismiss the demand for jury trial. The District Court concluded that the basic theory of a claim for unjust enrichment was in equityand concludedthat the jurywould be retained

### as

### an advisoryjury only. Mr. Storms, the husband of the plaintiff, as the one who constructed the bridge, testified as to the deteriorating and unsafe condition of thebridge prior to its 1987 replacement. The uncontradicted evidence also established that Mr. Storms did not contact the three defendants prior to the replacement of the bridge. The evidence also established that the Storms used the bridge on a daily basis while thedefendantsused theeasementmuch

more infrequently as they did not live on their properties. The evidence submittedby theplaintiffs established that the labor, materials and equipment used for the bridge construction totalled approximately $18,000. After completing the bridge, Mr. Storms sought proportionate contribution from the defendants who refused to pay any part of the cost of replacing the bridge. We alsonote thatunder theagreed statement of facts,no party to the actionwas willing to give up his interest in the easement. During the jury trial, at the close of the plaintiff's case, the defendantsmoved for a directed verdict. Their motion was on the grounds thatplaintiff failed toprove an increase invalue to the defendants' properties as 

### a result of the bridge replacement, and thus failed to prove unjust enrichment. The District Court concluded that in an unjust enrichment case, themeasure ofdamages was the value of the defendants' properties prior to the bridge construction as compared to the value of each of such properties after the bridge construction. The District Court further concluded there had been a failure of proof by the plaintiff todemonstrate such values of defendants' propertiesbefore and after bridge construction and that dismissal thereforewas appropriate. TheDistrict Courtgranted thedirectedverdict forthedefendants. The plaintiff moved for a new trial and to set aside the order granting directed verdict. The motion was denied. Plaintiff appeals. Did the District Court properly grant a directed verdict for the defendants? Under Rule 52(a), M.R.Civ.P., in all actions tried upon the facts with an advisory jury, "the court shall find the facts specially and state separately its conclusions of law." Thatwas not done in this case. In both the motion by the defendants and the order by the court, there was no recognition of the advisory status of the jury. Under the circumstances we will review the issue as though a motion for dismissal for failure of proof had been made and judgment entered finding such a failure of proof on the part of the plaintiff. Plaintiff contends that the District Court and thedefendants applied the improper measure of damages for unjust enrichment. Plaintiff relies upon Robertus 

### v. Candee (1983)

## , 205 Mont. 403, 670 P.2d 540. InRobertus, lessees sued the lessor of farmland on a theory of unjust enrichment and quantummeruit, contendingthatthe lessor benefitted fromthe lessee's groundbreakingand farmingdue tohis wrongful eviction of the lessees from the leased land. The Court discussed the theory of unjust enrichment as follows:

### The theory of unjust enrichment requires that a person who has been unjustly enriched at the expense of another mustmake restitutionto the other. Restatement of the Law, Restitution 31; 

# .

# . . Themeasure of this eauitable restitution interest is either the auantum meruit value of ulaintiff's labor and materials or 

### the value of the enhancement to the defendant's property. Restatement of the Law, Contracts 2d 6371: 

# . . .

(Emphasis added) Robertus, 670 

### P.2d at 542. 

### The holding of the Robertus Court is that the measure of the amount towhich a plaintiff is entitled on an equitablerestitution theory is either the quantummeruit value of theplaintiff's labor

or materials, 

## or the value of the enhancement to the defendant's property. The Robertus Court also was careful to point out that Ititis only somuch of the enrichmentwhich is unjust thatmay be awarded the plaintiff.' We conclude that the above cited Robertus rule is controlling in the present case. We further conclude that the measure of the unjust enrichment as to any of the three defendants is measured either by the quantum meruit value of plaintiff's labor and materials furnished in the bridge construction, or in the alternative, the value of the enhancement to the defendants1 properties. We do not find it necessary to evaluate the determination by the District Court that the plaintiff failed to prove the enhancement invalue to thedefendant's properties. The recorddoesdemonstrate that theplaintiff presented evidenceas to themarket value of the labor,materials and services expended in replacing the bridge. We therefore conclude that a directed verdict on the basis of failure of proof was not appropriate.Under the theory of unjust enrichment, the obligation of the respective parties is based upon the proportionate benefit to each in connectianwith bridge construction. The determination of this proportionate benefit will be an issue for consideration by the District Court. Reversed and remanded for further proceedings consistentwith this opinion.

We Concur:

Chief Justice 

### \Chief Justice J. 

### A. Turnage concurring: 

### Ispeciallyconcur in themajority opinion. 

### Ido soprimarily because the case is being sent back for a new trial. My concern is that, under the facts before this Court, 

### I do not believe that the plaintiff is entitled to claim the theory of unjust enrichment. As themajority opinion states,the defendantswere forced to seek judicial intervention in order to establishtheirright to the easement providing ingress and egress to their properties over the road that crosses theplaintiff Storms' property. After defendants obtained a judgment establishing their easement, the husband of plaintiff Elsie S. Storms, without consultation with the defendants, proceeded on his own volition to repair or replace the bridge, which Storms used on a daily basis and which was used infrequentlyby defendants. Storms, in my opinion, was a volunteer in the repair and replacement of the bridge and, as such, should not be entitled to make a claim of unjust enrichment. If this should become the accepted law of Montana, it would be an invitation for a wealthy individual topracticemischief and harassment upon neighbors less economically privileged 

### by officiously making improvements on property and then claiming ina lawsuitthat restitution forunjust enrichment should be paid by those neighbors.

### A person who officiously confers a benefit upon another is not entitled to restitution therefor. Restatement of Restitution, 

### S 2 

### (1937). Also, A 

### person who, incidentallyto theperformance of his own duty or to the protection or improvement of his own things, has conferred a benefit upon another, is not thereby entitled to contribution. Restatement of Restitution, § 106 

### (1937). The point wasmade that Storms herself used the bridge on a daily basis. In Wendover Road Prop. Owners Ass'n. v. Kornicks (OhioApp. 1985), 502 

### N.E.2d 226, 

### defendant sought review of a summary judgment against him on a complaint that he was unjustly enriched by 

### road, sewer, and water improvements made by plaintiff property

owners association. In reversing and granting final judgment to defendant, the Court of Appeals of Ohio stated: The association made the improvements to benefit itsparticipantsanddid sovoluntarily. The defendant did not consent. Nor was there any mistake, emergency, or compulsion demonstrated.

[Defendant] refused to participate in the project. Nor can it be argued that the improvements amounted to a duty imposed by law.

Absent any agreement or statutory authority, we conclude that the association may not recover for improvements officiously made by the association.

### Wendover, 502 N.E.2d at 231. In Dinosaur Development, Inc. 

### v. White (Cal.App. 1 

### Dist. 1989), 

### 265 Cal.Rptr. 525, 

### plaintiff's plan for a subdivisionwas approved by 

### local government on the condition that plaintiff must construct a road from the nearest public thoroughfare to defendants' adjacent land, which was otherwise landlocked. Plaintiff soughtto recover fromdefendant adjacent landownersundera theory of unjust enrichment. The California Court of Appeals, First District,held: Ifplaintiff complies with the

# . .. condition for approval of the subdivision, defendants will benefit. But because thebenefit will be incidental to plaintiff's proposed development, itwill not be unjust enrichment requiring defendants to make restitution. Dinosaur, 265 Cal-Rptr. at 530. The court affirmed an order dismissing the complaint. On retrial of this matter, the claim of unjust enrichment should be a major concern.

# {i. Chief Justice