Graven v. Backus

• Decision Date: 10 December 1968
• Docket Number: No. 8491,8491
• Citation: 163 N.W.2d 320
• Parties: Thomas G. GRAVEN, Plaintiff and Appellant, v. Jack W. BACKUS, Defendant and Respondent, and Third-Party Plaintiff, v. Reuben THOME, Third-Party Defendant. Civ.
• Court: North Dakota Supreme Court

Page 320

163 N.W.2d 320

Thomas G. GRAVEN, Plaintiff and Appellant, v. Jack W. BACKUS, Defendant and Respondent, and Third-Party Plaintiff, v. Reuben THOME, Third-Party Defendant.

Civ. No. 8491.

Supreme Court of North Dakota.

Dec. 10, 1968.

Syllabus by the Court

1. When an issue not raised by the pleadings is tried by the express or implied consent of the parties, such issue shall be treated in all respects as if it had been raised by the pleadings. Rule 15(b), N.D.R.Civ.P.

2. The defendant has the burden of proof to establish his right to the affirmative relief he seeks by way of compulsory counterclaim.

3. A mandatory injunction is a proper remedy to invoke against an adjoining landowner to compel him to remove an encroachment. Where, however, a party, through innocent mistake, so constructs a wall that it encroaches slightly upon the adjoining property, a mandatory injunction will not issue, as a matter of right, to compel removal of the encroachment.

4. In determining whether the power of injunction should be used to remove an encroachment, the court should, when circumstances are appropriate, consider the doctrine of balancing the equities.

5. When a permanent wall is constructed which encroaches upon adjoining land and the encroachment is slight, does not irreparably injure the owner of the adjoining land, was innocently made, and the cost of removal would be great and disproportionate to the damage caused to the land encroached upon, a court of equity may, in its discretion, deny injunction and compel the owner of the land encroached upon to convey the strip of land upon which the encroachment is constructed, to accept damages, and release the defendant from damages for trespass.

6. A court of equity, having acquired jurisdiction over the subject matter, will retain it and do complete justice between the parties.

7. The fact that the plaintiff may have a remedy at law by an action for damages does not prevent equity from assuming jurisdiction if the equitable remedy is better adapted to render more perfect and complete justice than the remedy at law.

8. In the instant case where the plaintiff is entitled to a mandatory injunction to remove an encroachment but it is not issued because the court applies the exclusively equitable doctrine of balancing the equities, it renders a remedy at law for damages inadequate, and the court to do complete justice, will award damages.

9. Where it would cost the defendant much more to remove an encroaching wall in compliance with a mandatory injunction than the $2,500.00 damages allowed as an alternative to the issuance of a mandatory injunction and in consideration of which the defendant will receive a conveyance of the land encroached upon and a release of damages for trespass, the defendant cannot complain of the alternative provision of the judgment which has benefited him and, under the circumstances, cannot be said to be aggrieved by such judgment.

10. Only a party aggrieved by an order or judgment has a right of appeal therefrom.

Rausch & Chapman, Bismarck, for plaintiff and appellant.

Kenneth M. Moran, Jamestown, for defendant and respondent.

TEIGEN, Chief Justice.

We are involved here with an appeal by the plaintiff and a cross-appeal by the defendant. Both appeals are from the judgment. The case was tried to the court without a jury and the plaintiff, as appellant, has demanded a trial de novo. The defendant, as cross-appellant, has limited his appeal to specifications of error which were served with the notice of appeal.

The subject of the action involves an encroachment of the defendant's building upon the plaintiff's land.

The plaintiff, by his complaint, seeks to quiet title to the property encroached upon against the defendant and prays for a mandatory injunction requiring the defendant to remove the encroachment. As a second claim, the plaintiff seeks damages for breach of an agreement to move the plaintiff's garage back to the south property line of plaintiff's lot after defendant's encroaching wall was constructed, and for trespass upon the plaintiff's land which was not encroached upon by placement upon and failure to remove therefrom sand and gravel used in the construction.

The second claim of the plaintiff's complaint was dismissed by the trial court during the trial and after both parties had rested for failure of proof. No argument is made that this was error and no consideration will be given to the plaintiff's second claim in this opinion.

The defendant served an answer to the complaint upon the plaintiff. The answer is in the form of a general denial. However, in his prayer for relief the defendant prays for a dismissal of the plaintiff's complaint or, in the alternative, if the action is not dismissed, that the court order a sale of the defendant of that portion of plaintiff's land encroached upon by the defendant's building. No facts were pleaded in support of the alternative affirmative demand contained in defendant's answer, which is in the nature of a demand under a compulsory counterclaim.

At the trial the defendant admitted the encroachment. He then introduced evidence in support of his alternative affirmative prayer for relief. The evidence introduced was for the purpose of establishing that the court should not issue a mandatory injunction to compel the defendant to remove the encroachment because it is a proper case in which to apply the balancing-of-equities rule as the expense and difficulty of a removal of the encroachment would be great; that the encroachment is causing small damage to the plaintiff; and its removal will result in little benefit to him. In other words, the defendant intorduced evidence to substantiate his prayer that the court, as an alternative to the issuance of a mandatory injunction, in equity should order a sale to the defendant of that portion of plaintiff's land encroached upon. As we stated earlier, the defendant pleaded no facts in support of a compulsory counterclaim for affirmative relief but no objection was made to the introduction of the evidence on the ground that this issue was not raised by the pleadings and, as a result, the issue was submitted and determined by the court adverse to the plaintiff. Although the defendant did not file a compulsory counterclaim he was permitted to introduce evidence to establish facts upon which to support a claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim and his prayer for affirmative relief contained in the answer. This was a proper subject of a compulsory counterclaim. As a result of the issues raised by the trial the theory of the case was changed and the scope of the action enlarged. The claim made by the defendant raised by the evidence introduced with the consent of the plaintiff is auxiliary to the original action and dependent thereon, and the result is that the action became comprised of two interrelated and consolidated actions, each seeking affirmative relief. Thus an issue not properly raised by the pleadings was tried by the express or implied consent of the parties and must now be treated in all respects as if it had been raised in the pleadings. Rule 15(b), N.D.R.Civ.P. Steffen v. Boyle, N.D., 115 N.W.2d 8; Kucera v. Kucera, N.D., 117 N.W.2d 810; Helgeson v. Locken, N.D., 130 N.W.2d 573; Sobolik v. Vavrowsky, N.D., 146 N.W.2d 761.

We find the issues raised as a result of the trial are: (1) Shall a mandatory injunction issue requiring the defendant to remove the encroachment; or (2) Shall the court, as an alternative to the issuance of a mandatory injunction, require transfer of the property encroached upon to the defendant for a consideration?

The proceeding, raised as if by compulsory counterclaim, is in every respect analogous to the proceeding on the original complaint. The relative position of the parties being changed, it places upon the defendant, as the claimant, the burden of proof to establish his right to the affirmative relief which he seeks. 501 DeMers Inc. v. Fink (N.D.), 148 N.W.2d 820; Midland Oil & Royalty Co. v. Schuler (N.D.), 126 N.W.2d 149; 27 Am.Jur.2d Equity, Sec. 214, p. 771.

In the light of our analysis of the issues raised and the respective positions of the parties relative thereto, we will now consider the respective appeals.

The trial court applied the balancing-of-equities rule. By its judgment it requires the defendant to remove the encroachment or, in the alternative, that the defendant pay to the plaintiff the sum of $2,500.00, plus the costs of the action, in return for which the plaintiff shall be required to convey to the defendant the land upon which the defendant's building encroaches and to give him a release of past and prospective damages because of the encroachment.

The plaintiff, in his appeal, argues that the court erred in not granting an unconditional mandatory injunction. The defendant, on his cross-appeal, specifies as error and argues that the evidence does not sustain a finding of damages in the amount of $2,500.00. Thus the issues for our consideration are narrowed to the issues raised.

We will first consider the plaintiff's appeal.

The encroachment is admitted and the facts relative thereto are without dispute. The plaintiff is the owner of Lot 8, which is a 50-by 140 foot lot facing upon First Avenue in the city of Jamestown. Upon this lot is located the plaintiff's home and his private garage. Lot 7 lies immediately south of Lot 8 and is a corner lot. The defendant owns the west one-half of Lot 7. The east portion of Lot 7 is occupied by the Westland Oil Service Station. The defendant, being desirous of enlarging a building located upon the west portion of Lot 7 and facing the street side of said lot, caused a survey to be made of the north lot line. This survey was made by the city engineer of the city of Jamestown. It was the intent of the defendant, in reconstructing the building, to construct a wall...