Whether or not a recovery should be allowed in these cases is a question of some difficulty. The fear of the common law courts that to permit a recovery would be to place a premium upon heedlessness is probably groundless. Certainly, the doctrine of equity has not brought disaster. But a more serious objection to recovery (and one that has not been given the attention it deserves) is the hardship that must sometimes result to the owner if he is compelled to pay for improvements which, though they may enhance the value of his property, he does not want. The owner should certainly have an election either to pay for the improvements or to sell the land to the improver at its fair market value.2 And with this election, the hardship to the owner would probably be less, in practically every case, than that which would result to the innocent occupant if he were denied relief.

1 Griswold v. Bragg, 1880, 48 Fed. 519, 522; 18 Blatch. (U. S. C. C.) 202; Fee v. Cowdry, 1885, 45 Ark. 410, 413; 55 Am. Rep. 560; Ross v. Irving, 1852, 14 111. 171; Armstrong v. Jackson d. Elliott, 1825, 1 Blackf. (Ind.) 374; Childs v. Shower, 1865, 18 la. 261, (holding an amendatory act giving defendant personal judgment unconstitutional); Claypoole v. King, 1879, 21 Kan. 602; Madland v. Beuland, 1878, 24 Minn. 372; McCoy v. Grandy, 1854, 3 Ohio St. 463, (holding, however, that a provision giving defendant option to pay value of land and take title is unconstitutional). And see Society, etc., v. Wheeler, 1814, 2 Gall. (U. S. C. C.) 105, 137; Fed. Cas., No. 13,156; Billings v. Hall, 1857, 7 Cal. 1, (upholding constitutionality of acts in general but holding particular act, which failed to distinguish between a bona fide occupant and a tortious one, unconstitutional); Newton v. Thornton, 1885, 3 N. Mex. 189; 5 Pac. 257, (holding act cannot affect landowner's right to improvements made before passage of act). See also Cooley, "Constitutional Limitations " (7th ed.), pp. 550-553 and cases cited.

2 See decree in Union Hall Ass'n v. Morrison, 1873, 39 Md. 281, 298.

Sec. 189. Same: Measure Of Recovery

Since in these cases the improvement is not made at the instance of the owner of the land, it cannot fairly be adjudged that he is benefited by the services rendered, money expended, and materials furnished, unless the market value of his property is enhanced (see ante, Sec. Sec. 8, 107). The limit of recovery, therefore, whether at law or in equity, should be the extent of the enhancement of the value of the property - not the value of the occupant's services nor the cost of the improvement.1 This is recognized in the Betterment Acts to which reference has been made {ante, Sec. 187).