“In equity, the mistaken improver may be entitled to relief by way of compensation under the rule or maxim that he who seeks equity must do equity, or under the doctrines of unjust enrichment or estoppel. Where the owner seeks the aid of the court in the establishment of his title or the recovery of possession of the premises, he may be required to make compensation for the improvements as a condition of obtaining such relief. According to some authorities, the right of recovery in equity is limited to such cases. According to other authorities, compensation may be recovered, as incidental or alternative relief, in an action instituted by the improver for other relief; and in several cases the court has gone to the full extent of holding that the improver, upon eviction, may obtain relief by an independent action for such purpose in any case in which it would be unjust or inequitable for the owner to take advantage of the mistake. But an innocent owner will not be required to pay for improvements where to do so would impose a hardship upon him. Such a case falls within the principle that where one of two innocent persons must suffer, the one whose act or conduct was responsible for the situation must bear the loss. In some instances, the owner has been given the option of paying for the improvements or accepting the value of the land without the improvements and relinquishing his title to the improving occupant.  

“In some cases, but not in others, the right to relief has been made to depend upon the owner's knowledge of or acquiescence in the making or construction of the improvement, or the existence of some element of fault or culpability on his part.”

Discussion Question:

1. How does this summary of doctrine and practice compare in practical effect with the Roman rules emerging from Cases 105–109? 

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

“The ordinary repairs upon a chattel by the addition of materials furnished by the person making the repairs or owned by a third person become accessions to and merge in the article repaired, which, provided it remains substantially the same thing, belongs, together with the additional materials, to the owner of the original article. This rule has been applied even though the materials added in making repairs are of greater value than the original article in its defective condition.  There is, however, authority to the contrary.” (footnotes omitted)

§ 1[b] Introduction—Summary

The doctrine of confusion of goods only applies where the quantity and value of the property of each owner cannot be determined. If the goods of several persons are intermingled and can be easily distinguished and separated or if they are of the same nature and value, although not capable of actual separation by identifying each particular, and if the portion of each owner is known and a division can be made of equal proportionate value, then each may claim his or her own, regardless of the tortious conduct of one of the owners in intermingling the goods. However, if the mixture is indistinguishable because a new product is formed that is not capable of a just appreciation and division according to the original rights of each, or because the articles mixed are of different values or quantities and the original values or quantities cannot be determined, the one whose wrongful act caused the confusion must bear the loss.” (footnotes omitted)