Can I sue for unjust enrichment for the full amount because I accidentally installed the wrong line?

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: 04/07/2025
• State: Virginia

Answer:

It will be a matter of determination for the court, based on all the facts and circumstances involved. If you have already appealed, it may prevent you from pursuing the claim on another theory, as the court doesn't allow multiple claims on the same issue. Once a final judgment has been reached in a lawsuit, subsequent judges who are presented with a suit that is identical to or substantially the same as the earlier one will apply the doctrine of res judicata to uphold the effect of the first judgment.

I am prohibited from giving legal advice, as this service provides information of a general legal nature. Generally, a person has a duty to mitigate (lessen) their damages. The answer will depend in part on whether it is necessary to disconnect and establish new service. It may be possible to create an agreement to share the existing line. If the establishment of a new line was considered to be duplicative or involving greater expense, a recovery may be denied on the basis that it violated the duty to mitigate damages. If the mistake could have been avoided with reasonable investigation, that may also be considered by the court in denying a recovery. I suggest you contact a local attorney who can review all the facts and documents involved.