Peters v. Archambault

361 Mass. 91, 278 N.E.2d 729 (1972)

 

RULE:

In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place. In rare cases, courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages, where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable.

FACTS:

Defendants' predecessor in title obtained a building permit in 1946 and built a house partly on their own lot and partly on the plaintiffs' lot. The encroachment contained 465 square feet, and the building extended 15 feet, 3 inches, onto the plaintiffs' lot, to a depth of 31 feet, 4 inches. The trial judge found that it would be expensive to remove the encroaching portion of the building. He ruled that there had been established no estoppel of, or laches on the part of, plaintiffs in seeking to have the encroachment removed. It appears from the evidence that defendants bought their lot from one vendor and plaintiffs from another vendor. The judge found no evidence of any permission by the owners of plaintiffs' lot for the encroachment. The encroachment was discovered when plaintiffs had a survey of their land made. The Court ordered the removal of a portion of their home that encroached on the land of plaintiffs.

ISSUE:

Is an order of removal of a substantial encroachment to land proper even where removal is prohibitive?

ANSWER:

Yes

CONCLUSION:

The supreme court held that the invasion of plaintiff's lot was substantial and not de minimis. They were entitled to receive whatever was shown by the land registration certificate as belonging to their grantor, unencumbered by any unregistered prescriptive easement or encroachment.

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