Kasner v. Reynolds
| Citation | 1954 OK 56,268 P.2d 864 |
| Decision Date | 16 February 1954 |
| Docket Number | No. 35572,35572 |
| Parties | KASNER et al. v. REYNOLDS. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
1. Where the record as here discloses that the encroachment was in good faith, upon the assumption defendants' building and improvements were constructed in conformity with survey made by a licensed civil engineer, employed by defendants to survey and delineate the boundary lines of defendants and plaintiff's lots, this court will consider the circumstances, so that it shall not act oppressively.
2. Where defendants' encroachment is unintentional and slight, and plaintiff's use not substantially affected, and plaintiff's damage small and fairly compensable, while the cost of removal is so great as to cause great hardship or otherwise make its removal unconscionable, mandatory injunction may be properly denied and plaintiff relegated to compensation in damages.
Arnold T. Fleig, Oklahoma City, for plaintiffs in error.
Lee G. Gill, Oklahoma City, for defendant in error.
O'NEAL, Justice.
From the judgment granting Joanna Reynolds a mandatory injunction the defendants, M. Kasner and Irene Kasner, appeal.
The parties will be referred to herein as they appeared in the trial court.
The facts are not in substantial dispute. The parties entered into a Stipulation which discloses that the plaintiff is the owner of Lot 3 and the west 11 1/3 feet of lot 4, in Block 1, in Knott & Gillespie's Addition to Oklahoma City, Oklahoma; that the defendants are the owners of the north 40 feet of lots 1 and 2 in block 1, in said addition, and that each of said lots are twenty-five feet in width; that on the 1st day of November, 1947, defendants erected a stone building on the north forty feet of lots 1 and 2. The building included an outside stairway and a cement walk running along the east side of the building.
The issues of fact between the parties are whether the building and appurtenances thereto are located solely on defendants' lots or whether they are located in part upon the plaintiff's lot 3. The further question posed was, if the court found defendants' building and appurtenances encroached upon the plaintiff's lot, was she entitled to injunctive relief, and to a decree quieting title to her property, and also a judgment for the fair cash market value of the use of plaintiff's lot by defendants, by reason of the encroachments thereon.
In addition to the pre-trial stipulation, oral evidence was introduced to which we shall advert, infra.
The trial court made a general finding in favor of the plaintiff and rendered a judgment for mandatory injunction commanding the defendant to remove the building from plaintiff's lot, and a further judgment in the nature of the rental value of the strip of land wrongfully occupied, in the sum of $235.
Defendants' motion for a new trial was overruled and they appeal, and for grounds of reversal state:
'(1) The trial court deprived defendant of its day in court by erroneously holding that a judicial determination of boundaries was precluded by reason of the proceedings before the county surveyor, etc.
'(2) Regardless of the asserted finality of the county surveyor's finding respecting boundaries, a new and different boundary could be established by agreement, acquiescence, estoppel or prescription, and the court erred in failing and refusing to consider the evidence offered, or any evidence in support of these defenses.
'(3) In any event, the plaintiff was not entitled to the extraordinary relief of a mandatory injunction.'
After the submission of the case the trial court indicated an intention to find the issues generally in favor of the plaintiff, but at the same time continued the case for final judgment. Upon the date for the entry of a final judgment, defendants requested leave to file an amended answer to which we shall refer, infra.
The court permitted the filing of the amended answer with the proviso that it would be considered solely on the question of whether the plaintiff was entitled to a mandatory injunction. Additional evidence was thereafter introduced in part in support of defendants' proposed amended answer.
The original answer of the defendants was in the nature of a general denial and an allegation that they were the owners of the north forty feet of lots 1 and 2 in said addition, and that these defendants constructed the building thereon which is 40' X 47' in compliance with the building code of the City of Oklahoma City.
In their amended answer they pleaded that the determination of the boundary dispute was not binding or conclusive by reason of a certain survey made by the County Surveyor, pursuant to provisions of Title 19 O.S.1951 § 582 et seq.; that if such survey is held to be conclusive, same constitutes a taking of their property without due process of law in violation of Article II, Section 7, of the Oklahoma Constitution, and also of the 14th Amendment of the Federal Constitution; they further pleaded that the boundaries of their lots were surveyed prior to the erection of the building thereon, by a licensed surveyor, and that if there is an encroachment, as alleged by plaintiff, it was unintentional and the result of an innocent mistake.
It was further pleaded that the encroachment in any event was slight, and that the building could not be removed without its practical destruction; that the encroachment, if any, does not substantially deprive plaintiff of the use of her lots, and that it therefore would be inequitable to require the removal and destruction of their building.
It was pleaded that for many years prior to the erection of the building the owner of lots 3 and 4 had constructed a wire fence between said lot 3 and the defendants' lot 2, which fence all parties assumed was constructed upon the dividing line of their respective properties; that thereafter plaintiff stood by during the construction of defendants' building and made no complaint of encroachments, and after its completion requested defendants to build a new fence upon the exact line of the former fence which had been partially destroyed during the building operations.
Plaintiff seeks to sustain the judgment rendered upon the theory that where as here plaintiff, subsequent to the filing of her present action, requested the County Surveyor to survey her lots under the provisions of Title 19 O.S.1951 § 582 et seq., that such survey was conclusive against defendants, and also binding upon the trial court's determination of the boundary lines.
The County Surveyor testified in support of his survey, that the defendants' building encroached...
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...commercial building would be $45,000-$60,000 while diminished value to encroachee's lot was $3,180, no removal ordered); Kasner v. Reynolds, 1954 OK 56, 268 P.2d 864 (building which encroached about 20 inches, along with sidewalk which encroached 4.75 feet would not be removed by mandatory ......
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