Newmark v. Vogelgesang, 67643

• Decision Date: 30 January 1996
• Docket Number: No. 67643,67643
• Citation: 915 S.W.2d 337
• Parties: Stanley B. NEWMARK, Plaintiff/Appellant, v. John S. VOGELGESANG, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 337

915 S.W.2d 337

Stanley B. NEWMARK, Plaintiff/Appellant, v. John S. VOGELGESANG, Defendant/Respondent.

No. 67643.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 30, 1996.

Appeal from the Circuit Court of Franklin County, Honorable Jeff W. Schaeperkoetter.

David G. Dempsey, St. Louis, for Appellant.

Briegel & Baylard P.C., David L. Baylard and Christopher W. Jensen, Union, for Respondent.

CRANDALL, Judge.

Plaintiff, Stanley B. Newmark, appeals from the judgment of the trial court, in plaintiff's court-tried trespass action against defendant John S. Vogelgesang. Plaintiff sought compensatory damages, an injunction, and a declaratory judgment. The trial court entered judgment in favor of plaintiff for $500.00 damages on plaintiff's trespass claim, entered judgment in favor of defendant on plaintiff's remaining claims, and awarded judgment to plaintiff on defendant's counterclaim. We affirm.

The properties involved in this litigation are situated at the intersection of Interstate 44 and Highway 47 in Franklin County. Defendant is the owner of a Mobil service station at this intersection. Defendant purchased the station from Mobil in 1988. Plaintiff's property borders defendant's property on three sides. Plaintiff leased the land south of defendant's service station to Hardee's restaurant, and the land north of defendant's station was previously leased to Shell Oil Company, although it was unoccupied at the time this action was brought. The remaining land was undeveloped.

In 1989, defendant demolished the existing station on his property and began constructing a larger facility. Plaintiff brought this action in 1990, alleging that defendant's improvements encroached upon plaintiff's adjacent land when defendant constructed a new gas station on his property. Plaintiff asked for an injunction requiring defendant to remove the alleged encroachments, alternatively for a judgment for both compensatory and punitive damages, and a declaratory judgment that plaintiff owed no duty of lateral support for defendant's improvements.

At trial, plaintiff's expert witness testified concerning his survey of plaintiff's property. According to plaintiff's expert, defendant's improvements encroached upon plaintiff's property in several areas: a concrete pad holding a Mobil sign (10.76 square feet), a concrete fuel pump pad (12 square feet), a light standard pad (2.25 square feet), a triangular portion of the paved lot (482.61 square feet), a portion of the building (15.43 square feet), and a portion of the building's footings (which the expert did not observe, but estimated to be 13.28 square feet). The total alleged encroachment was approximately 536.33 square feet. Of this total, 511.32 square feet lies to the south of a curb which had been installed by Mobil years before the defendant purchased the property and which the defendant believed constituted the property line.

Plaintiff's expert completed at least two surveys of defendant's property. The first survey contained a line from the right-of-way of the south outer road 95.50 feet to the north (top) of defendant's property. The second survey denotes the same line as being 94.50 feet. The expert testified that he changed the number because he realized his original notation was incorrect, but that he made no alterations to his survey after he discovered the erroneous notation. He stated the erroneous measurement did not affect the scale of the survey, so no changes were necessary.

Due to the proximity of the claimed encroachment to the questioned property line and the minimal nature of the claimed encroachment, the trial court was unable to find and determine that the claimed encroachments involving the concrete pad holding the Mobil sign (10.76 square feet), a portion of the building (15.43 square feet), and a portion of the building's footings (13.28 square feet) constituted actual encroachments.

The trial court found the remaining claimed encroachments to be actual encroachments, but held that removal was not an appropriate remedy. Instead, the trial court ordered defendant to pay $500.00 to the plaintiff for the remaining 496.86 square feet of encroachments. The trial court denied plaintiff's request for injunctive and declaratory relief, stating that the plaintiff had an adequate remedy at law. The trial court entered judgment in favor of plaintiff on defendant's counterclaim.

Plaintiff raises several issues on appeal, one of which is a request for equitable relief. Plaintiff contends the trial court abused its discretion in failing to order removal of the encroachments because defendant demonstrated a lack of good faith.

"Equitable relief is discretionary, extraordinary, and should not be applied when an adequate legal remedy exists." Umphres v. J.R. Mayer Enterprises, Inc., 889 S.W.2d 86, 90 (Mo.App.E.D.1994). When the injury is small, equitable relief should not be granted. Id. Whether an...