Brief Fact Summary.
Plaintiff is suing the defendant for a mandatory injunction of an encroachment on plaintiff’s land.
Synopsis of Rule of Law.
If an encroachment is unintentional and slight, does not affect land use, causes minimal damage, and has a cost of removal that causes an undue burden, a mandatory injunction requiring the removal of a building encroachment may be denied.
The rights of the parties under a mandatory judgment whereby they may be subjected to punishment as contemnors for a violation of its provisions, should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby.View Full Point of Law
Defendant Golden Press, Inc. built a building next to Plaintiffs Rylands and Reid property. The building’s foundation and footings encroached upon the plaintiff’s property two to three inches. The value of the encroachment was $55. The trial court found encroachment and granted a mandatory injunction. Defendant appealed to the Supreme Court of Colorado.
If an encroachment is unintentional and slight, does not affect land use, causes minimal damage, and has a cost of removal that causes an undue burden, may mandatory injunction requiring the removal of a building encroachment be denied?
Yes. The trial court’s judgment is reversed, and the case is remanded for further proceedings.
In this case, in absence of contrary proof, good faith is believed if the defendant is claiming that the encroachment was unintentional. Plaintiffs did not file for an injunction until after the foundation and upper wall were completed. Therefore, removal of the foundation and upper wall will be unconscionable because of the expense and hardship. The encroachment is slight based on how small it is.