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The facts that the aggrieved owner suffers little or no damage from the trespass, that the wrongdoer acts in good faith and will be put to disproportionate expense by removal of the trespassing structures, and that neighborly conduct as well as business judgment will require acceptance of compensation in money for the land appropriated, are ordinarily no reasons for denying an injunction. The court cannot ordinarily take rights in real property from the owner at a valuation, except under the power of eminent domain. Only when there is some estoppel or laches on the part of the plaintiff, or a refusal on his part to consent to acts necessary to the removal or abatement which he demands, will a court refuse an injunction.
In 1927 one Vartigian built a theatre in Somerville on land the rear of which adjoined the rear of land of one Aaronian. Both lots bounded also in the rear upon a private way called Sewall court, which ran into Sewall street. There is no finding as to the ownership of the fee in Sewall court, but it is found that rights of way over Sewall court are appurtenant to both the Vartigian land and the Aaronian land. The plaintiff, now owning the Aaronian land, sought an injunction against the present owners of the theatre, for the removal of trespassing structures. the trial court entered an injunction restraining the use of a drain across the property of plaintiff, the owner of the encroached land, and ordered it to remove the fire escape platform and the fire escapes that extended over plaintiff's property.
Was the trial court’s order of removal of the portion of the fire escape that overhung the theatre's land proper?
The court affirmed the injunction that the trial court entered but modified it and struck the section that required removal of the portion of the fire escape that overhung the theatre's land. The record did not establish that plaintiff had a right to have the court area kept open to the sky. The court reasoned that plaintiff sought to protect a legal right, more than a mere easement. The court granted the injunction to protect property rights against a continuing trespass by the encroaching structure based upon the danger that a continuance of the wrong could ripen into title by adverse possession or a right of prescription. It found that a particular piece of real property cannot be replaced by any amount of money and the court would protect a title to real estate. Nothing in the case facts took it out of the general rule and estoppel or laches were not shown.