Hoffman v. Bob Law, Inc. - 2016 S.D. 94, 888 N.W.2d 569

Rule:

Because of their effect on real property interests, encroachments have posed special problems and produced special solutions. On the one hand, no one should be permitted to take land of another merely because he is willing to pay a market price for it. On the other hand, requiring removal of an encroachment may constitute economic waste if the encroaching structure must be destroyed. Thus, the dominant approach in the encroachment cases is to balance the relative hardships and equities and to grant or deny the injunction as the balance may seem to indicate. The balancing of equities encourages the denial of injunctive relief when the expense or hardship to be suffered by the trespasser is disproportionate to the small benefit to be gained by the injured party. A court may deny an injunction if the hardship to the trespasser—e.g., the cost to remove the encroachment and loss of value to the remaining structure—is disproportionate to any benefit gained by the landowner.

Facts:

Appellee Kenneth Hoffman, whose fixtures encroached on the adjoining landowner's property sued for an implied easement to keep the encroachments on the adjoining property. The adjoining landowner counterclaimed for trespass and sought a mandatory injunction to compel removal of the encroachments. The circuit court denied the homeowner's claim for an implied easement. On the adjoining landowner's counterclaim, the court ruled the encroachments constituted a trespass. Nevertheless, the court denied the adjoining landowner's request for a mandatory injunction to remove the encroachments. The court awarded the adjoining landowner nominal damages and ordered removal if the encroachments became subject to relocation in the future. The adjoining landowner appealed the denial of its request for the mandatory injunction and the order allowing the encroachments to remain until they are relocated in the future.

Issue:

Was the landowner entitled to an injunction, under S.D. Codified Laws § 21-8-14, compelling removal of encroachments on its property? 

Answer:

No, with respect to the septic system.

Conclusion:

With respect to the septic system, the court held that the circuit court did not err in denying an injunction to remove it, allowing it to temporarily remain until the encroachment was relocated by an adjoining property owner or his successors in interest, and awarding nominal damages because the appellee would have suffered disproportionate hardship if he were compelled to remove the septic system and the landowner failed to introduce evidence of actual damages. However, the court held that reversal and remand was warranted relating to a lamp pole, concrete pad, propane tank, and encroaching portions of a retaining wall and driveway because the circuit court did not balance the equities and hardships as to these encroachments.