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 the Ninteenth 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 Clerk 
Justice Fred J. Weber delivered the opinion of the Court. 

In the Nineteenth Judicial District Court for Lincoln 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, 

Sunderland and Wilmarth (defendants) , moved for a directed verdict. 

The motion was granted and judgment was entered for the defendants. 

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 the parties to this action are adjacent landowners near 

Trego, Montana. Access to all of the parties properties is by use 

of an easement road which includes a bridge crossing Fortine Creek. 

Following is a summary of key facts agreed to by all of the parties 

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 plaintiff8s property and Fortine Creek by 

means of a single lane bridge. 

2 
4. As a result of the described court action in Lincoln 

County, defendants and their spouses on April 3, 1985, obtained a 

judgment granting them an easement which provided approach to their 

properties across the Storms property, 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 

bridge were reasonable and necessary and amounted to approximately 

$19,000. She further stated that the previous bridge structure had 

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 to proportionately 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 

equity and concluded that the jury would be retained as an advisory 
jury only. 

Mr. Storms, the husband of the plaintiff, as the one who 

constructed the bridge, testified as to the deteriorating and 

unsafe condition of the bridge 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 the defendants used the easement much 

more infrequently as they did not live on their properties. 

The evidence submitted by the plaintiffs 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 

also note that under the agreed statement of facts, no party to the 

action was willing to give up his interest in the easement. 

During the jury trial, at the close of the plaintiff's case, 

the defendants moved for a directed verdict. Their motion was on 

the grounds that plaintiff failed to prove an increase in value 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, the measure of damages 

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 to 
demonstrate such values of defendants' properties before and after 

bridge construction and that dismissal therefore was appropriate. 

The District Court granted the directed verdict for the defendants. 

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." That was 

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 the defendants 

applied the improper measure of damages for unjust enrichment. 

Plaintiff relies upon Robertus v. Candee (1983) , 205 Mont. 403, 

670 P.2d 540. 

In Robertus, lessees sued the lessor of farmland on a theory 

of unjust enrichment and quantum meruit, contending that the lessor 

benefitted from the lessee's groundbreaking and farming due to his 

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 must make restitution to the other. Restatement 

of the Law, Restitution 31; . . . The measure 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 to which a plaintiff is entitled on an equitable restitution 

theory is either the quantum meruit value of the plaintiff'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 

Itit is only so much of the enrichment which is unjust that may 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 in value to the defendant's properties. The 

record does demonstrate that the plaintiff presented evidence as to 

the market 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 connectian with bridge construction. The determination of this 

proportionate benefit will be an issue for consideration by the 

District Court. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We Concur: 

Chief Justice 

\ 
Chief Justice J. A. Turnage concurring: 

I specially concur in the majority opinion. I do so primarily 

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 the majority opinion states, the defendants were forced to 

seek judicial intervention in order to establish their right to the 

easement providing ingress and egress to their properties over the 

road that crosses the plaintiff 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 

infrequently by 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 to practice mischief and harassment upon neighbors less 

economically privileged by officiously making improvements on 

property and then claiming in a lawsuit that restitution for unjust 

enrichment should be paid by those neighbors. 
A person who officiously confers a benefit 

upon another is not entitled to restitution 

theref or. 

Restatement of Restitution, S 2 (1937). Also, 

A person who, incidentally to the performance 

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 was made that 

Storms herself used the bridge on a daily basis. 

In Wendover Road Prop. Owners Ass'n. v. Kornicks (Ohio App. 

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 its participants and did so voluntarily. 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 subdivision was 

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 

sought to recover from defendant adjacent landowners under a theory 

of unjust enrichment. The California Court of Appeals, First 

District, held: 

If plaintiff complies with the . . . condition 

for approval of the subdivision, defendants 

will benefit. But because the benefit will be 

incidental to plaintiff's proposed development, it will 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