Golden Press, Inc. v. Rylands

• Decision Date: 06 August 1951
• Docket Number: No. 16407,16407
• Citation: 235 P.2d 592,124 Colo. 122
• Parties: , 28 A.L.R.2d 672 GOLDEN PRESS, Inc. v. RYLANDS et al.
• Court: Colorado Supreme Court

Page 592

235 P.2d 592

124 Colo. 122, 28 A.L.R.2d 672

GOLDEN PRESS, Inc. v. RYLANDS et al.

No. 16407.

Supreme Court of Colorado, en Banc.

Aug. 6, 1951.

Rehearing Denied Sept. 4, 1951.

Arthur A. Brooks, Jr., Lee W. Kennedy, Denver, for plaintiff in error.

Howard Roepnack, Robert J. Sullivan, Denver, for defendants in error.

STONE, Justice.

Plaintiffs Rylands and Reid owned a parcel of land fronting on West Colfax Avenue, Jefferson County, upon which were located their residence and garage and some rental cottages. Defendant Golden Press, Inc., constructed a one-story brick and cinder block business building on its property which adjoined plaintiffs' property on the east. According to plaintiffs' survey here unchallenged, the west wall of defendant's building is two inches clear of the lot line at the front or south end, is exactly on the line at the north end, and is approximately 160 feet in length.

In the action here involved, plaintiffs allege that in contructing the building defendant caused its foundation and footings to extend from two to three and a half inches upon plaintiffs' land. They further allege that during its construction defendant trespassed upon plaintiffs' property by permitting an I-beam to fall on their garage roof; by destroying a flower bed and line fence; by disturbing a graveled driveway and by walking upon and digging into plaintiffs' land. They allege still further that 'in the operation of the defendant's business and rental operation, the defendant permits, causes and occasions people to drive into and across the premises of the plaintiff by directing people to park in the rear and failing to disclose to the people an entrance to the east of the building, and the patrons of the store are misled by the signs directing them to park in the rear.' Plaintiffs prayed for injunction requiring that defendant remove all footings and foundations upon their property and that defendant, its servants, agents and customers be enjoined from trespassing upon their property and for damages in the sum of $1750 and exemplary damages. Upon issue raised by general denial the case was tried to a jury as to the issue of damages alleged by trespass, the court reserving the determination of the issue of injunction. On the issue of damages the jury returned a verdict in favor of the defendant. The court then found encroachment as alleged and granted mandatory injunction requiring that defendant's projecting footings be removed from plaintiffs' property, and further decreed 'that the defendant take action to properly direct drivers of vehicles where they should drive and park so as to stay on defendant's property, and the defendant shall remove any signs and directions that tend to confuse drivers of vehicles and lead them to believe that they are to drive or park on the property of plaintiffs'; then by separate order set aside the verdict of the jury and sustained plaintiffs' motion for a new trial, on the ground that there was no evidence to support it.

Defendant specifies and argues error in setting aside the verdict of the jury and ordering a new trial as to the issue of actual and exemplary damages. However, that order was discretionary and not a final judgment to which a writ of error lies, and there was no election to stand on the case made as in Mooney v. Carter, 114 Colo. 267, 160 P.2d 390.

Challenge is also raised as to expert witness fees allowed to plaintiffs' surveyor Coberly and his assistant, on the ground that there was no evidence as to the services performed or their value. The court was advised by the testimony of these witnesses as to their qualifications and the work which they had performed, and had knowledge of the time spent in giving testimony. The fees allowed were reasonable for their services in attending and testifying at the trial; their testimony was essential to establishing the property line between the parties and the amount of encroachment, and, under our statute there was no error in the allowance made therefor.

Error is specified to the portion of the injunctive decree requiring defendants to take action to direct drivers and to remove signs tending to confuse drivers. As to this issue the only evidence as to signs or instructions after the completion of the building was related to signs apparently issued by tenants rather than by defendant, and that evidence diclosed no sign directing people to park on plaintiffs' land or properly tending to mislead the public. Moreover, a judgment must be definite and certain in itself. 'It must fix clearly the rights and liabilities of the respective parties to the cause, and be such as defendant may readily understand and be capable of performing'. 49 C.J.S., Judgments, § 72, p. 191. '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.' Plummer v. Superior Court, 20 Cal.2d 158, 124 P.2d 5, 8. Lacking in this essential requirement, the portion of the decree above referred to may not stand.

There remains for consideration the portion of the decree requiring defendant to remove the footings of its building where they encroach upon the property of the plaintiffs. Ordinarily, mandatory injunction will issue to compel removal of encroaching structures, but it is not to be issued as a matter of course. On appeal to the court for an equitable remedy, the court must consider the peculiar equities of the case. A study of many decisions discloses no specific and universally-accepted rule as to encroachments. Even in jurisdictions like Massachusetts, in which it has been declared that mandatory injunction for removal of encroachment can only be denied where estoppel or laches is shown, Beaudoin v. Sinodinos, 313 Mass. 511, 48 N.E.2d 19, there are numerous cases where injunction has been refused in the absence of those defenses. See cases cited as exceptional in Gerogosian v. Un. Realty Co., 289 Mass. 104, 193 N.E. 726, 96 A.L.R. 1282. Generally in other jurisdictions such harsh rule is not followed. Sometimes a slight and harmless encroachment is held to be within the rule 'de minimis,' as in Tramonte v. Colarusso, 256 Mass. 299, 152 N.E. 90, and McKean v. Alliance Land Co., 200 Cal. 396, 253 P. 134, and generally the courts require that he who seeks equity should do equity and come with...