422 Mass. 276 | Mass. | 1996
The plaintiffs in this case (Gouldings) sought an injunction in the Land Court, enjoining the defendants (Cooks) to end a trespass on their property. The parties own neighboring residences in Scituate. When installation of another neighbor’s swimming pool caused the Cooks’s cesspool, which was partly under that neighbor’s land, to malfunction, they were forced to find an alternative sewage disposal system. The town required a septic system, and the only suitable site for such a system was on a 2,998 square foot triangle of land that the Cooks claimed belonged to them but which the Gouldings claimed was part of their residential property. While the town was pressing them, the Cooks negotiated with the Gouldings to no avail. The matter came to litigation. The
I
It is commonplace today that property rights are not absolute, and that the law may condition their use and enjoyment so that the interests of the public in general or of some smaller segment of the public, perhaps even just immediate neighbors, are not unduly prejudiced. Restrictions from architectural approvals to zoning regulations are accepted features of the legal landscape. See Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); Harris v. Old King’s Highway Regional Historic Dist. Comm’n, 421 Mass. 612 (1996). But, except in “exceptional” cases,
No doubt the Cooks considered themselves in desperate straits, but theirs was not the kind of desperation that justifies self-help with financial adjustments thereafter. See Rossi v. DelDuca, 344 Mass. 66, 70 (1962), and cases cited therein;
II
Like most propositions in the law the one we reaffirm now has some play at the margins. Accordingly, the Appeals Court is quite right that the courts will not enjoin truly minimal encroachments, especially when the burden on a defendant would be very great. The classic example is given in Restatement (Second) of Torts § 941 comment c, supra at 583:
“The defendant has recently completed a twenty-story office building on his lot. The work was done by reputable engineers and builders, and they and the defendant all acted in good faith and with reasonable care. It is, however, found that from the tenth floor upward the wall on the plaintiffs side bulges outward and extends over the line. The extent of the encroachment varies at different points, the maximum being four inches.”
Such accommodation recognizes the necessarily ap
As such, we hold that the Cooks must remove the septic system and pay damages.
The judgment of the Land Court is vacated and the case is remanded for proceedings consistent with this opinion.
So ordered.
Compare Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978), with Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). See also Fragopoulos v. Rent Control Bd. of Cambridge, 408 Mass. 302, 309 (1990). “In rare cases, referred to in our decisions as ‘exceptional’ courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages, ‘where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable. But these are the exceptions. . . . What is just and equitable in cases of this sort depends very much on the particular facts and circumstances disclosed.’ ” (Citations omitted.) Peters v. Archambault, 361 Mass. 91, 93 (1972). See Franchi v. Boulger, 12 Mass. App. Ct. 376, 379 (1981). “Such cases have been based upon estoppel (see Malinoski v. D.S. McGrath
Although, as the Appeals Court properly noted, notice of an opposing claim is not decisive on the question of good faith, the instant case presents a situation where there was more than mere notice; the parties were in litigation over the locus. See Lynch v. Union Inst. for Sav., 159 Mass. 306, 310 (1893); Brande v. Grace, 154 Mass. 210, 213 (1891).