101 Pa. Super. 135 | Pa. Super. Ct. | 1930
Argued November 17, 1930. This appeal is from a mandatory injunction requiring the removal of a garage wall built by defendants on plaintiffs' land in the City of Chester.
The encroachment is 20 feet long, 8 inches wide at one end and about 17 inches at the other; it is part of a one story brick garage, 20 feet by 18 feet, built on concrete foundations, which defendants erroneously thought they were building wholly on their own lot. Early in the trial it appeared that their position was that plaintiffs has "misled" defendants by planting a hedge on the boundary line. In the answer, *137 the averment was that the "garage is constructed entirely on the land of the defendants' side of the hedge which was planted by the plaintiffs as aforesaid to indicate the boundary line between the properties."
No objection to the jurisdiction in equity was made in time; we can therefore not now consider appellants' point that title to the occupied land should have been settled at law: Wright v. Barber,
In 1924, Wetherill owned a block of vacant land, 600 feet long by 140 feet deep, bounded on the east by Melrose Avenue, on the south by 21st Street, on the west by Hyatt Street and on the north by an alley. He first sold to plaintiffs a lot 60 by 140 feet at the eastern or Melrose Avenue end, conveying to them a frontage of 140 feet on Melrose Avenue and 60 feet on 21st Street. Their deed was dated April, 1924, and was duly recorded; soon thereafter they built a dwelling house and a garage on the lot.
In June 1925, Wetherill sold a lot adjoining plaintiffs' lot to Mrs. Stein (who, with her husband, is also a defendant) conveying to her a frontage of 53 feet 9 1/2 inches on 21st Street, with a depth of 140 feet between parallel lines, extending to the alley on the north. Defendants built a dwelling on their lot, and, in March, 1926, the garage in question.
In August, 1927, plaintiff discovered that the garage encroached on their lot, and, on defendants' refusal to remove it, filed this bill October 20, 1927.
No official surveys of the lots were made prior to building; the parties relied on measurements made by the contractors who built their houses. In September 1927, plaintiffs had an official survey made by the assistant engineer for the city of Chester, which was subsequently checked by the city-engineer; both testified to its accuracy, and no evidence contradicting it was offered. This survey located on the ground the lines of the respective lots in their relation to each *138 other and to the city street lines, and established the dimensions of encroachment stated above.
Plaintiffs had planted a privet hedge, beginning at the 21st Street front of their lot, and extending rearward 60 feet toward the alley; if they intended to plant it on the line separating the lots, they were mistaken, for, as the official survey disclosed, the hedge was not quite on the boundary, but was inside their lot. Though the witnesses differ about the length of the hedge, we must accept the finding made, that it was 60 feet. When defendants had their garage built, the builder apparently assumed that the line of the hedge, if projected rearward, would be the boundary between the lots, and located the garage accordingly, while he built inside the line of the hedge, he still got over on plaintiffs' land. Neither Wetherill nor plaintiffs had established monuments on the ground; nor were there any contractual relations between these adjoining owners concerning the division line of their lots.
Defendants bought from Wetherill a lot described by metes and bounds, and not a lot described as west of the hedge. The chancellor has found that the garage was constructed "about the first of March 1924;" we assume that he meant in March 1926, and not 1924, because two witnesses testified that it was built "in the spring of 1926," and defendants had not yet acquired the land in 1924. They acquired no title to the strip, 8 inches by 17 inches by 20 feet, by building their garage on it, and if plaintiffs had brought ejectment and obtained judgment, the portion of the garage built on their land would have belonged to them and not to defendants.
Appellants contend that where, as here, both parties have mistaken a common boundary line, it is inequitable to grant a mandatory injunction, after plaintiffs have waited to assert their claim a year and a half after the mistake. Whether such injunction *139
shall be granted in any case, depends on the wise exercise of discretion vested in the chancellor, (Youse v. McCarthy,
The encroachment resulted from defendants' mistake; they are trespassers. "Where one intrudes upon the land of another, the latter has choice of remedies; he may compel a withdrawal of the intruder, or he may regard the intrusion as a permanent trespass and recover compensatory damages therefor:" Baugh v. Bergdole,
In considering what has been held in other cases we note that it has been deemed immaterial — at least not controlling — that parties were mistaken as to the exact location of their boundary line. In Pile's and Pedrick's Appeals,
In Mulville v. Cooper,
Laches or acquiescence do not depend on time alone, but on diligence in ascertaining rights and asserting them; indifference may become acquiescence: McGrann v. Allen,
In Baugh v. Bergdoll, supra, the encroachment was underground, and was intentionally made as "absolutely necessary" and according to "the custom of the building trade," but it was held that a mandatory injunction should be granted; see, too Piper v. Queeney,
Parties who see an adjoining owner begin and complete a construction on what he regards as his lot, who know, or by means of simple inquiry can be informed, of their division line, do not, by delaying inquiry and suit substantially eighteen months, act with such diligence as will warrant a mandatory order to restore the status quo; they are entitled only to compensation for the permanent trespass resulting from the construction of the garage on plaintiffs' land as shown in the record.
The decree is reversed and the record is remitted *142 for further proceedings not inconsistent with this opinion; costs of this appeal to be paid as the chancellor may ultimately determine.