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Coombs v. Lenox Realty Co. - 111 Me. 178, 88 A. 477 (1913)

Rule:

Where, by an innocent mistake, erections have been placed a little upon the plaintiff's land, and the damages caused to the defendant by the removal would be greatly disproportionate to the injury of which a plaintiff complains, the court will not order them removed, but will leave the plaintiff to his remedy at law.

Facts:

Defendant realty company erected a four story brick apartment building on Turner Street, Auburn, on land adjoining plaintiffs', Clara Coombs and others, land. At the bottom, the wall next to plaintiffs' land was built about one inch in from the division line, and was so continued up to the second story. At a point between the second and third stories, owing it is said to the freezing of the mortar nights in extreme cold weather, the wall gradually bulged out as it was built up, until it was in a place or places two inches over the line. The trouble was then noticed by the contractor, and the wall was gradually drawn in until at the top it projected over the line about a quarter of an inch. The result was that when the wall was completed there was an area on its side, towards the easterly end, 20 to 30 feet high and 30 to 40 feet long, which overhung the plaintiffs' land, and the overhang was two inches at the most, and from that down to a point at the bottom, and a quarter of an inch at the top. In the past, Coombs had brought two successive actions of trespass quare clausum fregit for the trespass, and recovered judgment in each case. Coombs (with others) now brought a bill for a mandatory injunction to compel defendant to remove the overhang of the wall, which cantilevers over the property line.

Issue:

Should the court grant the injunction ordering the removal of the two-story building?

Answer:

No

Conclusion:

The Court dismissed the bill, explaining that in general, where a defendant has gone on without right and without excuse in an attempt to appropriate the plaintiffs' property, or to interfere with his rights, and had changed the condition of the real estate, he is compelled to undo, so far as possible, what he had wrongfully done affecting the plaintiffs and pay the damages. Nevertheless where, by an innocent mistake, erections have been placed a little upon the plaintiffs' land, and the damages caused to the defendant by the removal would be greatly disproportionate to the injury of which the plaintiff complains, the court will not order them removed, but will leave the plaintiff to his remedy at law. In this case, the court held that the defendant and contractor had made a mistake.

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