# 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:** 6\ **Page:** 2
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 9, 2008, 3:22pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/21 "2008-12-09T15:22:01Z")
> [@Aspidistra](#): > > Wouldn’t that necessarily lead to her neighbors thinking they have one or two feet more on their property than they actually have? No, because everybody knows about the setback rule. > [@](#): > > 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. What makes you think your fences are built along the right line? Seriously, building a fence along the wrong route happens all the time here. I can’t believe that all property lines and surveyors and fence builders in an entire country are so meticulous and accurate that they never get it wrong even by six inches. Also, in most places the original survey lines were done two hundred or more years ago. Not only were surveys less accurate then, they also had a tendency to mark off distances from a convenient creek or oak tree that may no longer be there. That’s makes it almost impossible for the divisions within divisions within divisions to all be accurate to the inch everywhere. I simply can’t believe this isn’t true for Australia. Are you sure you aren’t just using your personal experience as a substitute for the realities of a very large country? ---
**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, 3:27pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/22 "2008-12-09T15:27:46Z")
> [@](#): > > 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. The parties were next-door neighbors. > [@](#): > > 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’ building leans across the property line by 7 3/8 inches. > [@](#): > > 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. Defendants blame plaintiff. They claim that the plaintiff graded her property with dirt, which she retained using the defendants’ fence, and which cause the defendants’ property to buckle over onto her property. > [@](#): > > 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 found that the defendants’ building does lean onto plaintiff’s. > [@](#): > > 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 also found that the defendants’ building had moved into that position, the cause was not known, but the defendants did not cause the overhang. To be continued in next post. ---
**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, 3:57pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/23 "2008-12-09T15:57:26Z")
> [@](#): > > 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. The court found that the foundation of the defendants’ building was entirely on their own property, and that the overhang did not interfere with any use that the plaintiff proposed for the property. > [@](#): > > 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. The plaintiff proved to the court that she had sold the property to a third party who wanted to realign the building on the plaintiff’s property so that the building on the plaintiff’s property was within the plaintiff’s property lines. > [@](#): > > 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]). Courts have discretion when it comes to granting injunctions. > [@](#): > > 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. The defendants’ building overhangs the a corner of the plaintiff’s property by less than a foot. > [@](#): > > 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. The overhang existed for a long time and the plaintiff may have caused it. > [@](#): > > 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. The defendants claim that the court should not have granted an injunction because they did nothing at all. The cases allow an injunction where the defendant did something, even if it wasn’t negligent to do so, to cause the encroachment, but not where the defendant did nothing at all–that’s the defendant’s argument anyway. (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.] Courts have discretion in these cases. But they should start with the assumption that the defendant is a wrongdoer and the plaintiff’s property rights have been violated. To deny an injunction the court should consider: 1. It wasn’t the defendant’s fault; the court should also consider whether the plaintiff caused the problem; 2. Irreparable harm to the plaintiff beats costs imposed on the defendant by the injunction 3. Hardship on the defendant, generally, counts less than hardship on the plaintiff. > [@](#): > > (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 was removed. This is a factual determination supported by the evidence. The defendant did nothing wrong, but the plaintiff will suffer irreparable harm if no injunction is granted because the defendant’s building needs to be straightened. > [@](#): > > 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. The costs to the parties of granting or denying the injunction are roughly equal. > [@](#): > > 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. Denying an injunction where it is warranted is like a taking. The lower court got it right by granting the injunction. > [@](#): > > (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 If the plaintiff thinks she’s getting money too, she’s nuts. ---
**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, 6:03pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/24 "2008-12-09T18:03:58Z")
> [@Exapno\_Mapcase](#): > > No, because everybody knows about the setback rule. Where, in NY? What happens when the neighbors want a fence, too? Is there a 12" gap between fences? An intentional setback makes no common sense. We wouldn’t stand for it here in the heartland! > [@](#): > > Also, in most places the original survey lines were done two hundred or more years ago. Not only were surveys less accurate then, they also had a tendency to mark off distances from a convenient creek or oak tree that may no longer be there. That’s makes it almost impossible for the divisions within divisions within divisions to all be accurate to the inch everywhere. Only really accurate in metes and bounds states, like NY. But even newer plats – say this century – would be expected to be accurate relative to each other. It’s not like most subdivisions date back 200 years. Actually, I wonder if there are any precedents describing the protocol for the subdivisions when the original survey of the whole plot is found to be defective. Again, probably only an issue where the PLSS isn’t used. ---
**Author:** ![ZenBeam](https://avatars.discourse-cdn.com/v4/letter/z/3ab097/32.png) [@ZenBeam](https://boards.straightdope.com/u/ZenBeam)\ **Post date:** [December 9, 2008, 6:19pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/25 "2008-12-09T18:19:46Z")
I think whether a fence goes on the property line, or set back a short distance, is a regional thing, probably mostly dependent on lot size. When I lived in California, the lots and backyards were small, and the fences were all on the line, and were privacy fences. Where I am now, we don’t have fences by default, but some people have put them in. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 10, 2008, 3:04pm UTC](https://boards.straightdope.com/t/a-question-about-property-disputes/476124/26 "2008-12-10T15:04:25Z")
> [@Balthisar](#): > > Where, in NY? What happens when the neighbors want a fence, too? Is there a 12" gap between fences? An intentional setback makes no common sense. We wouldn’t stand for it here in the heartland! I meant to refer only to large structures like houses, buildings, and garages. Fences should be erected along the boundary line, although that can lead to problems if neighbors don’t agree where that line is, which is very frequently. > [@](#): > > Only really accurate in metes and bounds states, like NY. But even newer plats – say this century – would be expected to be accurate relative to each other. It’s not like most subdivisions date back 200 years. Most land in the country, certainly everything as far west as the Louisiana Purchase, was sectioned 200 years ago. I highly recommend [Measuring America: How an Untamed Wilderness Shaped the United States and Fulfilled the Promise of Democracy, by Andro Linklater](http://www.amazon.com/Measuring-America-Wilderness-Fulfilled-ofDemocracy/dp/0452284597/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1228920415&sr=8-1) as a wonderful read and an excellent history. He details the incredible achievement and the incredible travails of laying out accurate boundaries in what was still proverbial untracked wilderness, and talks about all the mistakes, compromises, inaccuracies, failures, unprofessionalism, and looseness that went into marking the sections, and the plats thereof. When those are not accurate - and some were far off - nothing based on them can be fully accurate. > [@](#): > > Actually, I wonder if there are any precedents describing the protocol for the subdivisions when the original survey of the whole plot is found to be defective. Again, probably only an issue where the PLSS isn’t used. I think it’s called the court system. 🙂 Land law suits are noted for their endlessness, pickiness, and feuds that make the Hatfields and McCoys look like BFFs. [Previous page](https://boards.straightdope.com/t/a-question-about-property-disputes/476124.md?page=1)