Malnar v. Whitfield, No. 57616
| Court | Supreme Court of Oklahoma |
| Writing for the Court | HARGRAVE |
| Citation | 1985 OK 82,708 P.2d 1093 |
| Decision Date | 08 October 1985 |
| Docket Number | No. 57616 |
| Parties | Thomas 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. |
Page 1093
wife; Appellees,
v.
Gerald B. WHITFIELD, D.D.S. and Lynda Whitfield, husband and
wife, Appellants.
Page 1094
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
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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...
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Gay v. Hartford Underwriters Ins. Co., No. 82930
...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 ......
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Meritor, Inc. v. State ex rel. Bd. of Regents of Univ. of Okla., Case No. 117,498
...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 whether......
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Russell v. Williams, No. 89569
...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 building the ......
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Meritor, Inc. v. State, Case Number: 117498
...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 whether ......
-
Gay v. Hartford Underwriters Ins. Co., No. 82930
...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 ......
-
Meritor, Inc. v. State ex rel. Bd. of Regents of Univ. of Okla., Case No. 117,498
...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 whether......
-
Russell v. Williams, No. 89569
...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 building the ......
-
Meritor, Inc. v. State, Case Number: 117498
...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 whether ......