Malnar v. Whitfield, 57616

Decision Date08 October 1985
Docket NumberNo. 57616,57616
Citation1985 OK 82,708 P.2d 1093
PartiesThomas G. MALNAR, D.D.S. and Karen F. Malnar, Husband and wife; Appellees, v. Gerald B. WHITFIELD, D.D.S. and Lynda Whitfield, husband and wife, Appellants.
CourtOklahoma Supreme Court

Robert G. Green, Tulsa, for appellants.

Richard W. Gable, Kenneth E. Dornblaser, Gable & Gotwals, Tulsa, for appellee State Federal Sav. and Loan Ass'n.

P. Thomas Thornbrugh, Tulsa, for appellees Thomas G. Malner, D.D.S. and Karen F. Malner.

HARGRAVE, Justice.

This is an appeal from a judgment of the District Court of Tulsa County denying the defendant's request to permanently enjoin plaintiff's encroachment on his real property.

A portion of plaintiff Malnar's single story stone building was inadvertently constructed on defendant Whitfield's property. Upon discovery of the encroachment, Malnar instituted legal proceedings against several parties, including the surveyor, a contractor, and a savings and loan company for the negligent misplacement of his building. Malnar also sought a temporary injunction to prevent Whitfield from damaging the encroaching building.

Whitfield answered and cross-petitioned for a mandatory injunction to force removal of Malnar's encroaching building. The trial court granted Malnar's request for a temporary injunction and stayed trial of other issues until disposition of Whitfield's application for a permanent injunction requiring removal of the building. Whitfield, the defendant, put his case-in-chief before the court for issuance of the mandatory injunction. At the close of Whitfield's case-in-chief, the opposing party demurred to the evidence and the trial court sustained that motion and entered judgment denying the mandatory injunction. Whitfield appeals the denial, asserting he has proved a prima facie case for a mandatory injunction and the party resisting the injunction failed to show why the injunction should not be issued.

Appellant presents two grounds for reversal. The first is that the cross-petitioner's proof entitles the Whitfields to the mandatory injunction after the prima facie showing that the encroachment was not slight. Kasner v. Reynolds, 268 P.2d 864 (Okl.1954) states that where the encroachment is slight, the cost of removal will be great, and the corresponding benefit to the owner small or compensation in damages may be had, a court will ordinarily decline to compel removal, leaving the complaining party to his remedy at law. If the court were to concede the encroachment was more than slight, the moving party still may not obtain judgment upon the occasion of the resisting party demurring to the evidence as shown below.

The case of Snow v. Winn, 607 P.2d 678 (Okl.1980) demonstrates the ruling case law. A demurer to the evidence of plaintiff will be treated as a motion for judgment for the defendant. Thus, the court shall weigh the evidence and render judgment if the evidence of the plaintiff is insufficient for judgment in his favor. This is so because there is no logical reason to require the defendant to put on his evidence in defense of a cause of action not proved to contain a prima facie case. However, if the order sustaining the demurrer to the evidence in an equity action is reversed on appeal as against the clear weight of the evidence, then the defendant must be afforded an opportunity to present his evidence. Thus, the general rule that in an equitable action the appellate court will render the judgment the trial court should have rendered is not operative inasmuch as the defendant has yet to put his evidence before the court.

Considerations relevant to the granting of a mandatory injunction to remove an encroachment were discussed in Kasner v. Reynolds, 268 P.2d 864 (Okl.1954). The rule was early recognized that where the encroachment is slight, the cost of removal will be great, and the corresponding benefit to the adjoining owner small, or adequate compensation by way of damages can be had, a court will ordinarily decline to compel removal, leaving the party to his legal remedy. Furthermore, where issuance of the requested injunction will cause great injury to the defendant and will confer very little benefit upon complainant in comparison, it is proper to refuse an injunction especially when the right is doubtful or money damages are adequate.

In making the ruling on the demurrer, the trial court had before it ...

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10 cases
  • Gay v. Hartford Underwriters Ins. Co.
    • United States
    • Oklahoma Supreme Court
    • October 3, 1995
    ...Specialties, Inc., 687 P.2d 121, 130 (Okla.1984).11 Bixler v. Lamar Exploration Co., 733 P.2d 410, 412 (Okla.1987); Malnar v. Whitfield, 708 P.2d 1093, 1095 (Okla.1985); Snow v. Winn, 607 P.2d 678, 680-81 (Okla.1980). We note that ordinarily, when considering a demurrer to the evidence in e......
  • Meritor, Inc. v. State ex rel. Bd. of Regents of Univ. of Okla.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • September 27, 2019
    ...rule in equitable actions is the appellate court may modify the judgment to render the judgment the trial court should have. Malnar v. Whitfield , 1985 OK 82, ¶5, 708 P.2d 1093. The basic facts alleged in Meritor's Petition are not disputed. The first impression question of law presented is......
  • Russell v. Williams
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 28, 1998
    ...compared to the diminishment of the encroachee's property value, and the availability of compensation by way of damages. Malnar v. Whitfield, 1985 OK 82, 708 P.2d 1093. Russell alleged that he planned to build a driveway on the edge of lot 5 and that the encroachment prevented him from buil......
  • Malnar v. Whitfield
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 16, 1989
    ...and remanded the case for further proceedings requiring presentation of evidence by Appellees as the party resisting the injunction, 708 P.2d 1093 (1985). After such presentation, the trial court denied Appellant's request for a mandatory injunction and found Appellant to have acted in bad ......
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