Dennis J. Harrington vs. Callahan McCarthy

Massachusetts Supreme Judicial Court1897-11-23

169 Mass. 492

Summary · law.co

Holding. The court granted an injunction against maintenance of the defendant's wooden building (including its cornice and window sills) insofar as those portions extended over the plaintiff's land, but declined to enjoin removal of the foundation stones that projected slightly underground, leaving the plaintiff to pursue legal remedies for damages regarding that encroachment.

The plaintiff sought an injunction requiring the defendant to remove portions of a wooden building that extended onto the plaintiff's land. The defendant had constructed a building with a cornice projecting eighteen inches over the plaintiff's property line at one corner, and some window sills also extended slightly over the boundary. The defendant was aware of the boundary dispute when construction began, as the plaintiff had notified him of the encroachment while the foundation was being laid. The case presented the question of whether a property owner is entitled to mandatory injunctive relief to compel removal of structures wrongfully placed on his land.

The court held that the plaintiff was entitled to an injunction against the maintenance of the wooden building's projecting portions over his land. The court applied established principles that a defendant who wrongfully interferes with a plaintiff's property rights must undo the wrongful conduct where possible. The court rejected the defendant's arguments that the plaintiff's current use of the land as a driveway, or the absence of actual damages, precluded relief. The court noted that failure to act could allow the encroachment to ripen into an easement and harm the property's future value. The plaintiff had also acted promptly in bringing suit and had given timely notice to the defendant.

Regarding foundation stones that projected slightly below ground into the plaintiff's land, the court declined to order injunctive relief. Because the encroachment was unintentional and minimal, the defendant had offered compensation which the plaintiff rejected, and removal would be difficult and expensive while causing no appreciable harm, the court left the plaintiff to pursue a legal remedy for damages rather than equitable relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a property owner is entitled to mandatory injunctive relief to remove structures wrongfully constructed on his land
Whether the plaintiff's current non-intensive use of his land as a driveway defeated his right to injunctive relief
Whether the absence of actual damages precluded equitable relief
Whether the court should order removal of unintentional and minimal subsurface encroachments by foundation stones

Procedural posture

The plaintiff brought a bill in equity seeking a mandatory injunction to compel removal of a building structure that encroached upon his property.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Knowlton, J.

This is a bill in equity to obtain a mandatory injunction against the maintenance by the defendant of a building over and upon the land of the plaintiff. The general principles applicable to cases of this kind have often been stated. The proposition relied on by the plaintiff appears in Lynch v. Union Institution for Savings, 159 Mass. 306, 308, in these words: “ In general, where a defendant has gone on without right and without excuse in an attempt to appropriate the plaintiff’s property, or to interfere with his rights, and has changed the condition of his real estate, he is compelled to undo, so far as possible, what he has wrongfully done affecting the plaintiff, and to pay the damages.”

The defendant has constructed a wooden building with a cornice, which, at the front corner of the building, projects over the plaintiff’s land a distance of eighteen inches. Some of the window sills project slightly over the plaintiff’s land. He was under no mistake in regard to the boundary line, except as to the question whether the line at one end ran to the centre or to one side of a monument about four inches wide. When he was putting in the foundation stones the plaintiff called his attention to his duty by telling him that lie thought the wall was over the line. The bill was brought and notice of its filing was given to him before the house was completed. In our opinion the case falls within a large number of decisions granting relief by injunction to plaintiffs whose rights have been encroached upon by erections placed upon their land without right. Tucker v. Howard, 128 Mass. 361. Creely v. Bay State Brick Co. 103 Mass. 514. Cadigan v. Brown, 120 Mass. 493. Hodgkins v. Farrington, 150 Mass. 19. Lynch v. Union Institution for Savings, 158 Mass. 394, and 159 Mass. 306. The case does not fall within any of the exceptions stated in the case last cited. See also Brande v. Grace, 154 Mass. 210; Starkie v. Richmond, 155 Mass. 188; Methodist Episcopal Society v. Akers, 167 Mass. 560.

The fact that the plaintiff’s land is now used as a driveway does not affect his rights. He may at any time desire to erect a building upon it. Nor is it material that he has not yet suffered any actual damage in the use of his property. Melrose v. Cutter, 159 Mass. 461, 469. Peck v. Conway, 119 Mass. 546, 550. The maintenance of the defendant’s building over his land would, by the lapse of time, ripen into an easement which might materially affect the value of his property if nothing were done to prevent it.

The case shows no such laches as to deprive the plaintiff of his remedy. Linzee v. Mixer, 101 Mass. 512, 528. Attorney General v. Algonquin Club, 153 Mass. 447, 453. He called the defendant’s attention to his rights before the foundation wall had been completed, and the defendant could hardly have failed to know that his cornice would extend over the plaintiff’s land. The building is constructed of wood, and the projecting portions can easily be removed without substantial injury to the rest of the structure. We are of opinion that the plaintiff" is entitled to an injunction against the maintenance of any part of the wooden building over his land.

The case shows that, while the foundation wall is in the main upon the defendant’s land, an occasional stone projects a short distance into the plaintiff’s land below the surface of the ground. It appears that the defendant told the contractor who was building the wall of the plaintiff’s statements in regard to it, and directed him to be sure not- to go over the line as run by the surveyor, and believed he did not go over it. In view of the fact that the encroachment in this particular was unintentional and very slight, that the defendant, when he discovered it after the building was nearly completed, “ offered to pay the plaintiff any sum he might claim,” and the plaintiff refused to accept anything but removal; and in view of the further fact that the judge found that no appreciable damage resulted to the plaintiff, while it seems that the removal of the projecting portions of these stones might be difficult and expensive, we are of opinion that equity does not require us to order an injunction on this part of the case. As to this, the plaintiff is left to his remedy at law. Lynch v. Union Institution for Savings, 159 Mass. 306. Methodist Episcopal Society v. Akers, 167 Mass. 560.

So ordered.