Full question:
I was the first to arrive and build on a dominant flag lot. I installed electricity. A neighbor then bought the servient property and tied in. I asked for half of the installation expenses for the portion they are using. They refused. One of the articles in the CCRs says that the developer will install the line and each purchaser of lot shall bear the expense to install the secondary line. I sued in small claims under 'enforcement of CCRs and unjust enrichment.' It was established that a portion of the line is not in the utility easement but in the ROW. The servient lot owner uses that as a defense. I lost in small claims. I am told that this is a very common outcome here in our rural community and that the reason I lost was because I should have presented the case with the same set of facts using the theory of Contribution. I have appealed, hoping to represent that way. If I were to disconnect from the line and establish new service from an easement on a different lot, that would cure the defective installation. Could I then sue for unjust enrichment for the full amount under the premise that I accidentally installed a line that I would never be able to use?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Virginia
Answer:
It will be up to the court to decide based on the specific facts of your case. Since you have already appealed, you may be limited in pursuing a new claim based on a different legal theory, as courts typically do not allow multiple claims on the same issue. Once a final judgment is made, the doctrine of res judicata may prevent further lawsuits on the same matter.
Additionally, you have a duty to mitigate your damages, which means you should take reasonable steps to reduce your losses. If disconnecting and establishing new service is seen as unnecessary or excessively costly, the court may deny your recovery based on this principle. If your mistake in the installation could have been avoided with reasonable investigation, that may also affect your chances of recovery.
I recommend consulting a local attorney who can review all the details of your situation.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.