Opinion
No. 45145.
April 18, 1975.
Appeal and error — instructions — failure to challenge before appeal — effect.
Unjust enrichment — action to recover enhancement of value to defendant's property resulting from street improvement — sufficiency of evidence to sustain verdict.
Action in the Dakota County District Court brought to recover for improvements constructed by plaintiff in a street abutting defendant's property. The case was tried before Lawrence L. Lenertz, Judge, and a jury, which returned a verdict for plaintiff for $4,732.88. Defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial. Affirmed.
Byron W. McCullagh, for appellant.
Rosen, Kaplan Ballenthin and James E. Ballenthin, for respondent.
Considered and decided by the court without oral argument.
This appeal arises from an action for unjust enrichment of an owner of land adjacent to street improvements constructed by plaintiff. By general verdict the jury awarded plaintiff $4,732.88 on an implicit finding that plaintiff's construction enhanced the value of defendant's abutting property, for which he ought in equity to be required to pay his proportionate share of the costs of construction.
The case was submitted to the jury under the theory of unjust enrichment without objection by defendant. The instructions given the jury were in part those requested by defendant and were not assigned as grounds for a new trial. Under these circumstances, the instructions become the law of the case and may not be challenged for the first time on appeal. Cruz v. Newgren, 296 Minn. 534, 208 N.W.2d 865 (1973); 1B Dunnell, Dig. (3 ed.) § 358a.
The only remaining issue is whether the jury's verdict is manifestly and palpably contrary to the evidence viewed in the light most favorable to the prevailing party. Young v. Hansen, 296 Minn. 430, 209 N.W.2d 392 (1973). Our careful review of the files, record, and transcript in this matter compels a conclusion that it is not.
Affirmed.