Crest against Jack, 3 Watts 238

The opinion of the Court was delivered by Sergeant, J. If a stranger enter on the land of another, and make improvements by erecting buildings, they become the property of the owner of the land. Were it not so, a person might gain a title by the commission of a trespass, and strip his neighbour of his estate, or subject him to compulsory expenses under the pretext of improving his property. The foundation of property consists in its being an exclusive right: other persons cannot impair its enjoyment, or impose burthens on it by intermeddling with it without the owner’s leave, or colour of legal authority.

And this doctrine holds as well with respect to joint owners as to strangers. One joint tenant, or tenant in common, cannot erect buildirigs or make improvements on the common property without the consent of the rest, and then claim to hold until reimbursed a proportion of the moneys expended : nor can he authorize this to be done by a third person. If he desires to improve without asking the assent of a co-proprietor, his course is to have his share set off by partition, and to deal with that as he may see proper. This is the rule at law.

There are, however, cases in which an owner of land standing by and permitting- another to expend his money in improving it, has, in equity, been deemed a delinquent, and been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right.

There is something like encouragement to the other’s going on; or the one party acts ignorantly and without the means of better information, and the other remains silent when it is in his power to prevent him from expending his money under a delusion. To permit such a one to take advantage of the mistake would be revolting to every sentiment of justice.

But on the other hand I know no case where equity has, on the mere ground of silence, relieved one who is perfectly acquainted with his rights, or has the means of becoming so, and yet wilfully undertakes to proceed in expending money on the land of another without obtaining or asking his consent. His ignorance, if it exists, is wilful, and he acts at his peril. 1 Eq. Ab. 355; 2 Ibid. 522; 4 Serg. & Rawle 244; 2 Atk. 83; 3 Atk. 692; 2 Rawle 92; 3 Rawle 326. In the case before us there is no evidence that the plaintiff in any respect encouraged or connived at the erection of these buildings by T. Blair.

On the contrary, an avowed hostility existed between them : his consent was not desired, and there was no circumstance from which it could, with the least degree of plausibility, be inferred. It would rather seem that it must have been known to all the family that if asked it would be refused. Nor was the plaintiff bound to notify Blair of his right in the land, or of his dissent to the erection of the buildings.

Blair was well acquainted with the titles of the respective parties, having acted as agent for the former owner in receiving the rents ; and if he was not, he was bound to inquire into the title before he undertook to appropriate the lot. It was matter of record, accessible to all. The assent or encouragement of the brothers might, in equity, preclude them, but would not affect the right of the plaintiff. Judgment affirmed.