P and D owned adjoining foothill tracts acquired through a common grantor.
P's parcel is 20 acres and D owns two separate parcels, one that adjoins the northern portion of P's tract and another that adjoins the southern portion.
P seeks mandatory injunction and damages due to continuing trespass.
Alleges D built a cabin entirely on P's land in northern portion and that D built a family home of which 1/3 was located on P's land in the southern portion.
North-south boundary had never been surveyed or marked. D believed in good faith that the cabin was on D's property.
Cabin on northern corner was also built in good faith (D was good faith improver).
Lower Court judgment realigned the northern boundary to give D the .287 acres for their cabin and awarded P compensation for the land and survey. P appealed.
CA COA reversed, remanded.
When considering whether an improver acted in good faith (and thus qualifies for judicial relief under good faith improver legislation), what should a court consider?
In considering whether an improver actually acted in good faith, a court must consider the negligence on the part of the improver to ascertain the boundaries of his land prior to improving it.
As part of this, the court must consider any interim warning the improver received from the true owner regarding the boundaries of the land.
1968 good faith improver legislation was enacted to allow a good faith improver, operating under the mistaken belief that he is the landowner, to seek judicial relief.
Degree of D's negligence should be taken into account, however, and judgment should be consistent with substantial justice.
Court may also take into account injured owner's future plans and need for the land.
This legislation adds a negligence component to the good faith requirement; judicial relief can be denied if the improver was negligent in assessing the boundaries of his property.
Trial court did not consider Casper's negligence.
Evidence shows that D was negligent in ascertaining the property corners.
He also continued to construct the cabin after P warned him he might be on P's land.
This is inconsistent with good faith as defined by this statute, which explicitly says that a person is not a good faith improver as to any improvements made after he becomes aware of facts that preclude him from acting in good faith.
The law basically provides for a right to private eminent domain by the improver.
The more the improver invests in the land, the stronger his right.
Therefore, by continuing to invest money into the land after the P's warning, the D is improving his own position (and worsening P's position).
The law should not permit the improver to worsen the true owner's position after the latter has warned him of a potential trespass.
Trial court ignored this deliberate augmentation of initial investment.
But, this is a legally significant factor that should not be ignored.
The trial court must consider any interim warning and any improvements made before and after the warning.
Since a unitary improvement cannot be chopped in half, it is not practicable to fasten separate findings of good and bad faith on separate physical parts of an indivisible improvement.
As such, the court can conclude that the improver's intransigence equates with negligence rather than dishonesty, but their failure to find negligence is reversible error.