# A question about property disputes. **URL:** \ **Category:** Factual Questions\ **Created:** [December 7, 2008, 12:56pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124 "2008-12-07T12:56:57Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Aankh](https://avatars.discourse-cdn.com/v4/letter/a/ebca7d/32.png) [@Aankh](https://boards.straightdope.com/u/Aankh)\ **Post date:** [December 7, 2008, 12:56pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/1 "2008-12-07T12:56:57Z")
Disclaimer: I am not asking for legal help here. This is a purely theoretical question my husband and I were discussing. Situation: John and Jack are two unrelated individuals who own two adjacent plots of land in the town of Podunk, USA. They don’t keep very close tabs on this land they own, because they live elsewhere and it’s just something that’s been purchased as an investment. One day, John decides to build a house on his land and hires contractors and civil engineers and whatnot. Somewhere along the line, someone buggers up and his building infringes one foot across the shared boundary into Jack’s land. John, who is a decent guy, has no idea about this. Two years later, along comes Jack wanting to build something on his land, and his architects inform him about the mistake. He approaches John in anger and demands restitution. John checks into the matter, accepts he is at fault and immediately offers to pay Jack the current market value of the bit of land infringed upon. Jack refuses and demands that the building be torn down. He feels that the pice of land will only appreciate in value over time and taking the current market value would be a raw deal. He drags John to court. Question: In such a case, what does the judge do? Has a legal precedent already been set that you know of? ---
**Author:** ![racer72](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/racer72/32/3075_2.png) [@racer72](https://boards.straightdope.com/u/racer72)\ **Post date:** [December 7, 2008, 1:41pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/2 "2008-12-07T13:41:22Z")
A very similar situation happened to my father many years ago, it involved a garage though. My father had to tear down the garage and rebuild it 6 feet from it’s previous location. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [December 7, 2008, 1:52pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/3 "2008-12-07T13:52:06Z")
You asked for non-legal help…IME in disputes like this, the court has almost always forced the infringer to tear down or move their structure. This often comes up in the case of suburban fences, where someone puts their ubiquitous cedar fence too far over the line. For this reason my sister, who is currently trying to get a fence built, says most contractors mandate leaving a 1-2 foot gap between the fence and the property line “just in case.” I suppose however, in your example, if Jack waited too long, and lived in a State which allows for the so-called “legal theft of property” (also known as “adverse possession”, something I ran into myself), then John may be able to get the property and potentially pay nothing for it. ---
**Author:** ![Carnacki](https://avatars.discourse-cdn.com/v4/letter/c/b5e925/32.png) [@Carnacki](https://boards.straightdope.com/u/Carnacki)\ **Post date:** [December 7, 2008, 3:22pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/4 "2008-12-07T15:22:07Z")
> [@Una\_Persson](#): > > You asked for non-legal help…IME in disputes like this, the court has almost always forced the infringer to tear down or move their structure. This often comes up in the case of suburban fences, where someone puts their ubiquitous cedar fence too far over the line. For this reason my sister, who is currently trying to get a fence built, says most contractors mandate leaving a 1-2 foot gap between the fence and the property line “just in case.” > > I suppose however, in your example, if Jack waited too long, and lived in a State which allows for the so-called “legal theft of property” (also known as “adverse possession”, something I ran into myself), then John may be able to get the property and potentially pay nothing for it. In case anyone wants to read more on adverse possession, here’s a site which has a summary of each state’s adverse possession law: [http://law.findlaw.com/state-laws/adverse-possession/](http://law.findlaw.com/state-laws/adverse-possession/). I didn’t check each state, but the minimum required duration of adverse possession is generally between 5 and 10 years, so 2-years might not be long enough. But again - each state is different, and this is not legal advice. ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [December 7, 2008, 4:29pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/5 "2008-12-07T16:29:39Z")
For someone to offer only the market value of the taken land in the case of an encroachment is a pretty poor deal for the encroached upon land owner and borderline insulting. If my physical house was actually encroaching on the other person’s land I would be doing back-flips to make the other land owner happy. It sounds like the encroacher is doing the absolute raw minimum to try and settle the issue (ie pay for the value of the strip he encroached on). Not a very proactive stance and borderline stupid. To be frank for the house itself (not the setbacks which are typically 15-50 feet) but the _actual house_ to be encroaching means there was a monumental screw up by the surveyor (hopefully a survey was done) who the encroaching land owner might be able to look to for monetary relief. If there was no survey done the encroaching land owner is looking both cheap and incredibly stupid at this point. Now if this is a scenario where the home builders’s fence line is encroaching or he has too small a setback, but the house itself is within his boundaries, you can usually apply for a zoning variance, but you are describing the scenario as being the house itself being over the line which is way more problematic. ---
**Author:** ![Snnipe\_70E](https://avatars.discourse-cdn.com/v4/letter/s/b5a626/32.png) [@Snnipe\_70E](https://boards.straightdope.com/u/Snnipe_70E)\ **Post date:** [December 7, 2008, 4:50pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/6 "2008-12-07T16:50:43Z")
I have heard of this hapening. The encroached house reduced the empty lot’s size and reduced it below the mim lot size allowed to build a house. The solution a land swap. Jack and John deed over equal size sections of land to each other, with John paying all the costs. ---
**Author:** ![GusNSpot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gusnspot/32/436_2.png) [@GusNSpot](https://boards.straightdope.com/u/GusNSpot)\ **Post date:** [December 7, 2008, 5:41pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/7 "2008-12-07T17:41:51Z")
This is why there are licensed & registered & certified land surveyors. ---
**Author:** ![Aankh](https://avatars.discourse-cdn.com/v4/letter/a/ebca7d/32.png) [@Aankh](https://boards.straightdope.com/u/Aankh)\ **Post date:** [December 8, 2008, 3:55pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/8 "2008-12-08T15:55:55Z")
Thank you, **Una** and **Kid Scruffy**. That was interesting. I’m actually curious about this case Astro mentions: > [@astro](#): > > To be frank for the house itself (not the setbacks which are typically 15-50 feet) but the _actual house_ to be encroaching What if the building itself is encroaching on the adgacent property? Case (a): It’s just a balcony. Case (b): It’s part of a two-storey house. Maybe some room or wall-space. Case (c): It’s a giant freaking commercial property that’s encroached in. Does the judge force a huge payout in cases B and C? Has something like this ever actually happened? Again, I am not looking for any personal legal advice here. I’m not in the US, don’t own property there, and have never even breathed its air. This is a purely academic exercise. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [December 8, 2008, 11:21pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/9 "2008-12-08T23:21:31Z")
A case happened in Seattle many, many years ago. (at least according to the Underground Seattle Tour guide) A man built a warehouse 1 foot over the property line. He tried to pay the neighbor for the land, but the neighbor refused all offers and demanded that he tear down the offending part of the warehouse. So the man tore down 2 feet of the building. Later the neighbor built his building, righ up to the original building. The first man waited until it was done before informing the neighbor that now _his_ building was over the line and demanded that he tear it down. The neighbor ended up going bankrupt and the first man bought the adjacent building and combined the two. ---
**Author:** ![Quercus](https://avatars.discourse-cdn.com/v4/letter/q/7ab992/32.png) [@Quercus](https://boards.straightdope.com/u/Quercus)\ **Post date:** [December 8, 2008, 11:53pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/10 "2008-12-08T23:53:59Z")
> [@aankh](#): > > I’m actually curious about this case Astro mentions: > What if the building itself is encroaching on the adgacent property? > Case (a): It’s just a balcony. > Case (b): It’s part of a two-storey house. Maybe some room or wall-space. > Case (c): It’s a giant freaking commercial property that’s encroached in. > Does the judge force a huge payout in cases B and C? Has something like this ever actually happened? Well, let’s assume that the judge decided that the infringee had the legal right to have the infringing property torn down (at least the portion on the wrong property). He’s not going to say “The infringer shall tear down the building”; he’s going to say “The infringer shall tear down the building, unless an agreement is reached between the infringer and infringee.” So if the building is tremendously valuable and the strip of property not that valuable in comparison, then deals can be made. There’s nothing that says the infringee has to take any deal, but assuming they’re not crazy, and the land really is less valuable than the building, then competent negotiators should reach a deal (probably for more than otherwise ‘fair market’ price for the land, but, hey, you pay more when you screw up. Tough.) ---
**Author:** ![Aspidistra](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspidistra/32/3894_2.png) [@Aspidistra](https://boards.straightdope.com/u/Aspidistra)\ **Post date:** [December 9, 2008, 12:14am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/11 "2008-12-09T00:14:57Z")
> [@Una\_Persson](#): > > For this reason my sister, who is currently trying to get a fence built, says most contractors mandate leaving a 1-2 foot gap between the fence and the property line “just in case.” Wouldn’t that necessarily lead to her neighbors thinking they have one or two feet more on their property than they actually have? This is all very counter-cultural to me. Around here the norm is that you plonk your fence dead on the boundary between two properties, and both property owners pay their share of the cost. I don’t remember the last time I saw a block of land that didn’t have a fence around it. Is it normal in the US to be able to just walk straight from one block to another? ---
**Author:** ![sinjin](https://avatars.discourse-cdn.com/v4/letter/s/ebca7d/32.png) [@sinjin](https://boards.straightdope.com/u/sinjin)\ **Post date:** [December 9, 2008, 12:34am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/12 "2008-12-09T00:34:07Z")
Yes ---
**Author:** ![sinjin](https://avatars.discourse-cdn.com/v4/letter/s/ebca7d/32.png) [@sinjin](https://boards.straightdope.com/u/sinjin)\ **Post date:** [December 9, 2008, 12:36am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/13 "2008-12-09T00:36:55Z")
And to be a bit more descriptive: We set up a slip and slide that went from our back yard to one 4 homes away. Yes, beer was involved, why do you ask? ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [December 9, 2008, 2:13am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/14 "2008-12-09T02:13:56Z")
> [@Aspidistra](#): > > Wouldn’t that necessarily lead to her neighbors thinking they have one or two feet more on their property than they actually have? In my last house, I either needed to present a property survey, or build along the existing fence line for the new fence. Since there was an existing fence, it was a no-brainer. I can’t think of anyone that would give up two feet just to be safe; now we’re back to adverse possession, or maybe something else. > [@](#): > > Around here the norm is that you plonk your fence dead on the boundary between two properties, and both property owners pay their share of the cost. I don’t remember the last time I saw a block of land that didn’t have a fence around it. Is it normal in the US to be able to just walk straight from one block to another? I paid for the entire fence myself. I figured that if the neighbors had wanted to spend on new fence, they’d have put one in years before I got there. Plus it was simple chain link (read: cheap). If you put up a privacy fence, most of the building codes demand that the ugly part of the fence face towards the property owner constructing the fence. In buying my current house, much of the attraction was in finding a neighborhood _without_ fences. A tiny little 0.48 acres isn’t much (well, in my area it is), but when they’re six in a row, it feels downright rural. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 9, 2008, 2:26am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/15 "2008-12-09T02:26:33Z")
Apropos of nothing, but a cool fact pattern from an old case: > [@](#): > > Defendant Gibbon and the mother of the plaintiff were owners of adjacent parcels of land in the city of San Francisco. There was a dispute between them as to the true division line of the lots. Gibbon had constructed near to what he believed to be the line a shed about ten feet high, the roof of which, according to the assertion of the plaintiff, projected over a part of his mother’s lot and came near to her house. Notice of the projection was given to the defendant, but he gave no heed to it. In that state of the question, the plaintiff on the 25th of September, 1876, took several men on to his mother’s lot to saw off that part of the roof of the shed which extended over so much of his mother’s lot as lay between her house and the supposed dividing line, and to move her house close up to that line. One of the men had mounted the roof of the shed and was in the act of sawing off the projection when the defendant, Quinlan, appeared on the balcony of the house on Gibbon’s lot armed with a double-barreled shotgun, which Gibbon had loaded with powder and buckshot, and put it in the hands of Quinlan, “to watch his property against the Dinans.” To prevent Quinlan from using the gun against the person on the shed, the plaintiff and another caught hold of the gun and a contest resulted between the parties, in which the gun in the hands of Quinlan was discharged into the body of the plaintiff, severely wounding him. Dinan v. Gibbon, 63 Cal. 387; 1883 Cal. LEXIS 470 (Cal. 1883) ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [December 9, 2008, 3:13am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/16 "2008-12-09T03:13:40Z")
> [@Aspidistra](#): > > Is it normal in the US to be able to just walk straight from one block to another? In many areas, yes - definitely. What’s the point of a fence (which can be expensive both to construct and maintain) when there’s nothing that needs confining? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 9, 2008, 3:23am UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/17 "2008-12-09T03:23:52Z")
Here is a case involving an encroachment by overhang: _Pahl v. Ribero_, 193 Cal. App. 2d 154; 14 Cal. Rptr. 174; 1961 Cal. App. LEXIS 1682 (Cal. Ct. App. 1961) > [@](#): > > These appeals were consolidated in an action for a mandatory injunction brought by Augusta Pahl, hereinafter referred to as plaintiff, against her neighbors, James and Louise Ribero, hereinafter referred to as defendants. The parties own adjoining parcels of real property fronting on Third Street in San Francisco: the plaintiff at 3908 Third Street immediately to the south of the defendants at 3900 Third Street, the corner of Third Street and Fairfax Avenue. > > On March 20, 1959, plaintiff filed her complaint alleging that for some years, the defendants had maintained a continuing nuisance and trespass by causing and permitting their premises to lean and bulge in a southerly direction and into and upon her property up to approximately 7 3/8 inches, and causing the two-story frame building on her property to be moved, bowed, pushed to the south off the property, and requested a mandatory injunction and $ 10,000 damages for the cost of repairs. > > The defendants answered and cross-complained, alleging that the natural grade level of both properties was far below the grade of the street upon which both pieces of property fronted; that from time to time, plaintiff had brought in fill upon her property and raised the natural grade level of the property to that of the street, and had used the foundation wall of the defendants’ property as a retaining wall, which constituted a continuing nuisance and created enormous pressure so that the defendants’ property buckled and leaned in a general southerly direction. The cross-complaint requested that the plaintiff’s maintenance of fill on the defendants’ property be declared a private nuisance, a mandatory injunction, and $ 10,000 damages for cost of repairs. > > After a trial without a jury which continued for several days, the trial court found the following facts: that for many years, there has been an overhang which at the southwest corner of the defendants’ buildings extended over the property of the plaintiff as much as 7 1/2 inches and continuing toward the front of the defendants’ property to a diminished extent; that the cost of the necessary repairs and alterations so as to align plaintiff’s building to be in its entirety within the boundary line of the land owned by plaintiff was $ 5,600; and that the reasonable market value of plaintiff’s property and improvements has been reduced by this amount. > > The court further found that the building owned by the plaintiff had moved laterally and was bowed and disaligned; that the cause of this lateral displacement, bowing and disalignment was not known; that neither of the defendants had been negligent in the construction or maintenance of the overhang, and that the defendants were innocent of any fault in the production or development of the overhang and that the defendants had not acted or failed to act in any way which contributed to or caused the overhang. > > The court further found that the plaintiff had no immediate plan for any use or occupancy of said property with which the existence of said overhang would in any manner interfere, or which would in any way be damaged by the overhang, so that money damages would adequately and fully compensate plaintiff for all injuries suffered, and found the damages to her, past, present and future would not exceed 1,000, if the encroachment was allowed to remain and was not increased; that the western portion of the southerly foundation wall of defendants' building leaned in a southerly direction at the side but the footings of the foundation of the defendants' building are entirely upon their lot and the ground level where the foundation was laid; that the hardship resulting to the defendants by granting the mandatory injunction prayed for would be greatly disproportionate to the hardship caused to the plaintiff by continuance of the overhang as the cost to defendants for the removal would be 5,950. > > From the above, the court concluded that: 1) the overhang constituted the maintenance of a continuing private nuisance; 2) the reasonable cost of the alterations and repairs to the plaintiff’s property so as to remove the bowing and disalignment and lateral movement and replace said building entirely within the boundary lines of her own property was 5,600, and that the reasonable market value of her property has been reduced by that amount; 3) the plaintiff was entitled to an additional amount of damages of 1,000 for the overhang over the portion of her real property above the ground; 4) the defendants’ structure was not a trespass on the plaintiff’s land; and 5) the defendants were to take nothing by virtue of their cross-complaint. > > Thereafter, on December 22, 1959, the court made and entered a document entitled “Interlocutory Judgment On Findings,” denying relief on the cross-complaint, denying plaintiff’s request for mandatory injunction without prejudice but expressly reserving jurisdiction to afford relief to the plaintiff if the overhang of the defendants’ building across the common building line increased or if the plaintiff or her successors in interest proved to the satisfaction of the court that she had the present intention to realign the building on her property so that it would be contained entirely within its boundaries, and awarding the plaintiff $ 1,000 damages for the encroachment on her real property above the ground, and her costs of suit. On February 17, 1960, plaintiff filed her appeal, No. 19444, from that judgment. > > Thereafter, plaintiff filed her motion for a mandatory injunction in accordance with the above-mentioned provisions of the interlocutory judgment. At the hearing on this motion on February 11, 1960, evidence was introduced to indicate that the plaintiff had signed a contract of sale with a purchaser, Mr. Heil, who had a present intention to realign the building within the boundaries of the property. The trial court granted plaintiff’s motion for a mandatory injunction on February 29, 1960, and on April 4, 1960, the defendants filed their appeal, No. 19476, from the order granting the mandatory injunction. > > On September 12, 1960, defendants filed a motion to dismiss the plaintiff’s appeal from the prior order denying the injunction (No. 19444). This court denied the motion without prejudice and the two appeals were consolidated by stipulation. > > Defendants have filed a joint brief in both matters; in No. 19476 in which they are the appellants, they argue that the trial court erroneously granted the injunction because the evidence indicated that the defendants were not responsible for the movement of the plaintiff’s property and the resulting bowing and disalignment, and because the trial court failed to balance the equities; in No. 19444, in which they are the respondents, defendants argue that the appeal from the order denying the injunction should be dismissed because the order was not an appealable final order as evidenced by the subsequent order granting the injunction; and that the damages awarded by that order should be denied as the trial court specifically found that they had not caused the overhang or the movement of the plaintiff’s property. In No. 19444, in which she is the appellant, plaintiff argues that the interlocutory order was a final appealable order and that she should be awarded the 1,000 damages awarded therein as the defendants have not appealed therefrom. In No. 19476, in which she is the respondent, the plaintiff argues that the injunction was properly granted but that the court erred in not also awarding her damages of 5,600. > > The issues thus presented for our consideration are: (1) Is the judgment of December 22, 1959, denying plaintiff’s request for a mandatory injunction an appealable order? (2) If so, is the appeal therefrom [No. 19444] made moot by the subsequent proceedings? (3) Did the trial court properly grant the plaintiff’s motion for a mandatory injunction? (4) If so, is the plaintiff entitled to both injunction and damages? > > * * * > > We turn now to the heart of the matter, which is whether the trial court properly granted the mandatory injunction. (7) It is the general rule in this state that while the right to injunctive relief under proper circumstances is well established, its issuance is largely discretionary with the court and depends upon a consideration of all the equities between the parties. No hard and fast rule can be adopted which will fit all cases and hence each must be determined upon its own peculiar facts ( Phillips v. Isham, 111 Cal.App.2d 537 [244 P.2d 716]). > > In this case, the area of the overhang was a triangular portion of plaintiff’s real property above the ground, commencing at the contiguous lot line of plaintiff’s and defendants’ building at its southwest corner, approximately 7 1/2 inches over into the plaintiff’s property and from there northerly from the southwest corner of said defendants’ building to the mutual lot line and from there to the point of beginning at Third Street. > > As indicated above, the court specifically found that the overhang had existed for many years, and that the plaintiff’s property had been laterally moved, but that the cause of the movement was unknown and the defendants in no way responsible therefor. The court also found that the natural grade level of both properties was below the grade of Third Street and that from time to time the plaintiff had brought fill onto the property to raise its grade level to that of the street. The plaintiff testified that she had lived on the property since 1927; that the backyard of the defendants’ house was at the original sidewalk level which is 8 feet or so below the now existing level of the plaintiff’s lot and Fairfax Avenue; that plaintiff put fill in her lot in the '30’s when Phelps Street was raised, and again in 1949 when the city filled and paved Fairfax Avenue; that her backyard was now 4-5 feet higher [than the original sidewalk level] but not up to the 8 feet that the rear of her lot was below Fairfax. > > Defendants argue that under these circumstances, the equitable relief granted was improper. We do not agree. Rather, we think this case is on all fours with Kafka v. Bozio, 191 Cal. 746 [218 P. 753, 29 A.L.R. 833]. In that case, as in this one, the parties were the owners of adjoining lots in San Francisco. The south line of the defendants’ lot formed a portion of the north line of the plaintiffs’ lot. Before the earthquake and fire of 1906, the defendant had erected a building on a scow foundation, consisting of a scow or raft constructed of heavy timbers and concrete, covering the entire lot, around the border of which was a concrete wall 17 inches thick which served as a foundation wall of the building. The fire of 1906 destroyed the building but left the scow and the concrete foundation walls intact. It was then discovered that the entire scow had moved in a southerly direction so that it and the defendants’ south wall projected into the plaintiffs’ premises a distance varying from 10 inches to 14 inches. When the plaintiffs demanded the removal of the wall from their premises, the defendant refused, indicating it was more economical to give a portion to the plaintiffs than to tear it out. In 1908 defendant erected a new four-story building upon his original foundation entirely within the boundaries of his own lot. Shortly thereafter, plaintiffs erected a four-story building on their lot, mainly upon a pile foundation, but in part upon walls resting upon the original soil and where it adjoined defendant’s resting upon that portion of defendant’s original wall which had encroached upon plaintiffs’ premises. As the two buildings were originally constructed, there was a space of about two inches between them. In December 1941, it was discovered that the wall along the boundary line between the two lots had sunk, with a resultant tipping of defendant’s building toward the south, so that the upper portions thereof encroached about 2 inches upon plaintiffs’ lot, pressing against their building, warping and distorting same so that plate glass windows therein were broken, plaster was cracked, doors and windows jammed, plumbing connections leaked, etc. The plaintiffs wanted to straighten and repair their building and were unable to do so under the existing conditions and brought the action to abate the nuisance. > > There, the wrong, as here, was not an encroachment upon the plaintiffs’ land but upon the space above the land, and the Supreme Court found that the encroachment was a nuisance rather than a trespass and indicated that an injunction was a proper remedy, saying at page 748: “. . . the maintenance . . . of a building which overhangs the premises of another is a violation of the latter’s rights which amounts in law to a nuisance, regardless of whether or not it is due to any negligent act or omission.” Ever since, it has been held that an owner of land may not do even nonnegligent acts on his property with impunity where they create a nuisance as to his neighbor, and that in such circumstances the owner of the neighboring land is entitled to appropriate relief ( Shields v. Wondries, 154 Cal.App.2d 249, 255 [316 P.2d 9]). > > Defendants argue, however, that since they did not act in any way here the mandatory injunction should not have been granted. > > (8) The proper rules for the application of this doctrine were recently set forth by this court [Division One], after an exhaustive review of the relevant authorities in Christensen v. Tucker, 114 Cal.App.2d 554, at pages 562-563 [250 P.2d 660] as follows: > > It is our view that the better reasoned cases hold that in encroachment cases the trier of the fact possesses some discretion in determining whether to grant or to deny the mandatory injunction. In exercising that discretion, and in weighing the relative hardships, the court should consider various factors. It starts with the premise that defendant is a wrongdoer, and that plaintiff’s property has been occupied. (9) Thus, doubtful cases should be decided in favor of the plaintiff. (10a) In order to deny the injunction, certain factors must be present: 1. Defendant must be innocent – the encroachment must not be the result of defendant’s willful act, and perhaps not the result of defendant’s negligence. In this same connection the court should weigh plaintiff’s conduct to ascertain if he is in any way responsible for the situation. (11) 2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected. (10b) 3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant. But where these factors exist, the injunction should be denied, otherwise, the court would lend itself to what practically amounts to extortion." [Emphasis supplied.] > > (12a) In applying these criteria to the facts of the instant case, it is clear as to the first that the defendants’ innocence is established. The court found that the cause of the lateral movement of the plaintiff’s property was unknown and that the defendants were in no way responsible therefor. As to the second, however, it is clear that here, the court concluded that irreparable injury would result as the plaintiff’s building could not be straightened out and aligned to conform to the boundary lines of the plaintiff’s property unless the encroachment [\*\*181] was removed. This is a factual determination supported by the evidence. > > As to the third criterion, the court found that the cost of removal to the defendant was 5,950 while the cost of repair to the plaintiff and the decline in the market value of her property was 5,600. These findings are also amply supported by the evidence. Thus, there was no indication that the hardship by the granting of the injunction was greatly disproportionate to the hardship to the plaintiff. Rather, the evidence indicated that the hardships were equal. (13) When a court of equity balances conveniences to determine that an injunction otherwise warranted, should be withheld, its action approaches an exercise of the right of eminent domain in favor of a private person ( Fairrington v. Dyke Water Co., 50 Cal.2d 198, 201 [323 P.2d 1001]). (12b) We think the court here properly weighed all the factors and concluded that the injunction should not be denied. > > (14) The final argument is the plaintiff’s contention that she is entitled to $ 5,600 in damages in addition to the mandatory injunction. We cannot agree. A similar contention was rejected in Spaulding v. Cameron, 38 Cal.2d 265, at page 270 [239 P.2d 625], as follows: > > “On retrial the trial court should determine whether or not the nuisance is in fact permanent. If it finds that it is, it should enter judgment for the decrease in market value. If it finds that it is not, it should grant injunctive relief and such additional damages as may be proved for the temporary decrease in the value of the use of the property while the nuisance continued. (See Bourdieu v. Seaboard Oil Corp., 48 Cal.App.2d 429, 437-438 [119 P.2d 973]; Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382, 387 [233 P.2d 914]; McCormick on Damages, § 127, pp. 503-504.)” > > The trial court’s action here was in complete accord with the above rules. As the trial court found no temporary decrease in the value of the use of the property by the plaintiff while the nuisance continued, there was no additional element of damages proved. We think the trial court is to be commended for reaching such a Solomon-like resolution of the many difficult questions of law and fact presented. > > Judgment granting injunction Civil No. 19476 is hereby affirmed. > > Appeal from interlocutory judgment Civil No. 19444 is hereby dismissed. The classic case is _Kelsen v. Imperial Tobacco Co._ [1957] 2 QB 334, which involved a sign overhanging the plaintiff’s property. See [Cuius est solum, eius est usque ad coelum et ad inferos - Wikipedia](http://en.wikipedia.org/wiki/Cuius_est_solum_eius_est_usque_ad_coelum_et_ad_inferos) and here is a recent case from the Solomon Islands that cites Kelsen and a few other cases: [http://www3.paclii.org/sb/cases/SBHC/1999/114.html](http://www3.paclii.org/sb/cases/SBHC/1999/114.html) ---
**Author:** ![Aankh](https://avatars.discourse-cdn.com/v4/letter/a/ebca7d/32.png) [@Aankh](https://boards.straightdope.com/u/Aankh)\ **Post date:** [December 9, 2008, 3:07pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/18 "2008-12-09T15:07:00Z")
> [@Gfactor](#): > > Here is a case involving an encroachment by overhang: > > _ **MASSIVE snip** _ I tried, sir. I really, honestly did. But still… 😕 Could someone translate **Gfactor** ’s information into English, please? As an aside, “_Cuius est solum eius est usque ad coelum et ad inferos_” is a beautiful line. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 9, 2008, 3:12pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/19 "2008-12-09T15:12:48Z")
> [@aankh](#): > > I tried, sir. I really, honestly did. But still… 😕 > Could someone translate **Gfactor** ’s information into English, please? > > As an aside, “_Cuius est solum eius est usque ad coelum et ad inferos_” is a beautiful line. Cecil wrote a column about the doctrine: [http://www.straightdope.com/columns/read/1117/can-i-declare-a-no-flight-zone-over-my-house](http://www.straightdope.com/columns/read/1117/can-i-declare-a-no-flight-zone-over-my-house) ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [December 9, 2008, 3:17pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/20 "2008-12-09T15:17:38Z")
In my neighborhood it was the builder himself who made the mistake, and built the entire house too far over, so it hung into the next lot. Since the builder owned that lot as well, there were no legal problems, and he simply sliced off a portion of that lot and added it to the other lot. However, the newly trimmed lot was then too narrow for the zoning. The builder held on to it for years trying to get a variance, and eventually turned it back to the city for taxes. [Next page](https://boards.straightdope.com/t/a-question-about-property-disputes/476124.md?page=2)