Loading...
HomeMy WebLinkAbout2008-2776 Civil CORNELIUS J. KEIM, III : IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : PETER R. WILSON, JR. AND : SHARON J. WILSON, : DEFENDANTS : 08-2776 CIVIL TERM IN RE: EJECTMENT OPINION AND ORDER OF COURT Bayley, J., July 13, 2009:-- April 29, 2008 On , plaintiffs, Cornelius J. Keim, III and Linda L. Keim, filed a complaint in ejectment against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson. Plaintiffs seek an injunction ordering defendants to remove an encroachment that is on their property. Plaintiffs filed an amended complaint on June 4, 2008. A bench trial was conducted on June 17, 2009. In June, 1976, the Keims bought a residence in the Pine Brook Development at 3813 Bellows Drive, Hampden Township, Cumberland County. On January 19, 2007, the Wilsons bought the residence next door at 3811 Bellows Drive. The sellers were Bruce Graham and Shannon Graham who had bought the property from Leslie and Carol Petrie in 2005. The Petries had constructed a swimming pool and deck in their rear yard. In 1998 or 1999, the Petries told the Keims that they were extending their pool deck toward their property and asked if their workers could enter their property to make it easier to build the new deck with a retaining wall. They offered to plant arborvitae trees next to the retaining wall that would shield the wall, deck and swimming pool from view, to which the Keims agreed. The extended deck, on which there is an 08-2776 CIVIL TERM approximate six foot fence, anchored by the retaining wall, was constructed and the arborvitae were planted. In late June, 2006, the Grahams who then owned 3811 Bellows Drive, asked the Keims if they could trim the arborvitae which were extending over the fence on their pool deck. The Keims granted permission to trim the top of the trees. The Grahams not only trimmed the top but also the sides of the arborvitae. When the Keims saw that the sides were trimmed they were concerned as they thought the arborvitae had been planted on their property by the Petries. On January 19, 2007, shortly after the Wilsons settled on their purchase of 3811 Bellows Drive, Peter Wilson met Linda Keim. She told him how the Grahams had cut the arborvitae and that she and her husband were going to have a survey of their property. That same day the Keims hired Hartman and Associates, Inc., to do a survey. The fieldwork was completed on January 24, 2007, and the Keims were told by the surveyor that the arborvitae were on their property but the pool deck and retaining wall encroached onto their property. The printed survey outlining the encroachment was completed on March 13, 2007. The Keims informed the Wilsons of the encroachment in early 2008. The Wilsons then had their property surveyed by Akens Engineering Associate, Inc. The parties stipulated that this survey, which contains a separate depiction of the metes and bounds of the encroachment, is accurate. The line separating the side yards of plaintiffs and defendants runs 128.94 feet. The encroachment starts along that line at a point 56.43 feet from Bellows Drive. It runs 38.34 feet to where the retaining wall and -2- 08-2776 CIVIL TERM the pool deck with the fence on top meets the Keims side line at a point 34.16 feet from the rear of the two properties which abut a golf course. At its widest point, near the north end, the encroachment is 24.35 inches. It tapers toward the south where at the end it is 6.5 inches wide. The encroachment is along thirty percent of plaintiffs’ side line and is 58.70 square feet. The Keims entire property is 19,864.91 square feet. The encroachment is hidden from their view by the arborvitae trees that are at the top of an embankment of the Keims’ property near their side line. Pile v. Pedrick, Plaintiffs, citing 167 Pa. 296 (1895), maintain that they are entitled to an injunction requiring the Wilsons to remove the encroachment. Defendants maintain that an injunction should be denied because plaintiffs are guilty of Bonds v. Bonds, laches. In 689 A.2d 275 (Pa. Super 1997), the Superior Court of Pennsylvania stated: Laches arises when a party’s rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). “The application of the equitable doctrine of laches does not depend upon the fact that a certain definite period of time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act at another’s prejudice.” In re Jones, 442 Pa.Super. 463, 660 A.2d 76, 82 (1995) (citation omitted). Laches cannot be based on a change of position taking place before the complainant Leedom v. Thomas, could have and reasonably should have brought suit. 473 Pa. 193 (1977). Barndollar v. Groszkiewicz In , 178 Pa. Super 110 (1955), the plaintiffs brought -3- 08-2776 CIVIL TERM a complaint in equity seeking a mandatory injunction for the removal of a wall built by the defendant which encroached slightly more than two feet onto their property. A judge refused to issue the injunction but awarded compensatory damages. On appeal the Superior Court of Pennsylvania affirmed. The Court set forth the facts: In 1946 the plaintiffs purchased a lot on Barkerstown Road, Tarentum, on which a garage was situated, across the street from their residence. Defendant owns a house and lot immediately adjacent to this garage property situated at a higher elevation than plaintiffs’ lot. The chancellor found that plaintiffs, who have lived at their present address since 1939, were familiar with the condition of the premises in question when they purchased them. A faulty drainage condition which, according to the plaintiffs’ predecessor in title, Anna Bayer, had existed since the garage was built, due to the topography of the land, brought a seepage of water into the garage. The plaintiffs, in an attempt to correct it, removed a then-existing wall between the parties’ properties and in digging discovered a pipe coming from the direction of defendant’s home. Plaintiffs notified defendant to remove the pipe and she complied. Plaintiffs constructed a new wall along the rear of the garage but the flooding continued. They then complained to defendant. In August 1952 defendant’s son and brother erected the wall which is the subject of this proceeding. Admittedly the new wall, built entirely at defendant’s expense, has remedied the drainage difficulty but the wife-plaintiff testified, “. . . I don’t want that wall on my property. I want that wall off there.” According to one witness for the plaintiffs, the wall was constructed in approximately eight or nine hours of one day. However, the husband- plaintiff testified that it took “probably three or four days” and that he not only knew about the erection of the wall but watched the progress of the work. The following excerpt from his testimony is also pertinent: “Q. Did you ever at any time go over and tell them to stop putting it up? A. They knew it didn’t belong to them—Q. Answer my question, please (Question read.) A. No, I didn’t.” The wall was completed in August or September 1952. This action was started on September 30, 1953. The wall was completed in August or September 1952. The action against defendant was started on September 30, 1953. The Superior Court concluded: -4- 08-2776 CIVIL TERM [w]e agree with the learned chancellor that under the foregoing circumstances plaintiffs are now barred by laches from asserting successfully that which, had prompt objection been made, would have been their right to a mandatory injunction, and that their sole remedy is damages. Cf. Soifer v. Stein, 101 Pa. Superior Ct. 135. sub judice, In the case plaintiffs ordered a survey of their property because the Grahams trimmed the sides of the arborvitae trees without their permission. That made plaintiffs think that the arborvitae might not be on their property. At that point plaintiffs had no reason to believe that the retaining wall and pool deck, which were hidden from view by the arborvitae, might encroach onto their property. They first learned of that January 24, 2007 encroachment when told by their surveyor on . The printed survey March 13, 2007 completed on set forth the minor extent of the encroachment. Plaintiffs April 29, 2008 1 Barndollar did not institute this suit until . The facts in are not on point because in that case the plaintiffs knew of the encroachment as soon as it was constructed yet substantially delayed seeking an injunction to require its removal. In the present case, plaintiffs had no reason to believe that the pool deck and retaining wall encroached on their property until after the Wilsons purchased 3811 Bellows Drive. Although plaintiffs waited a little over a year after learning of the encroachment, to institute this suit, laches does not apply because there was no want of due diligence on their part in failing to act to the Wilsons’ prejudice. Defendants further maintain that an injunction to require the removal of the __________ 1 Plaintiffs maintain that they did not file suit earlier because for a period of time they were preoccupied with making repairs as a result of water damage on their property. (This damage was not caused by the encroachment). This is of no legal import on the issue of whether laches applies. -5- 08-2776 CIVIL TERM encroachment should be denied because the encroachment is de minimis. In Moyerman v. Glanzberg, 391 Pa. 387 (1958), the appellee applied to a building inspector for a permit to erect a dwelling on his lot and in his application incorrectly stated the length of the lot frontage. The permit was granted and the dwelling was constructed. Had the lot dimensions actually been as represented on appellee’s application, the dwelling as located could not have been the subject of objection. However, the lot had less frontage than set forth on the application. As a result the completed dwelling that was located in accordance with the incorrect dimensions was built so close to the boundary line with appellants’ property that it encroached on their driveway to a depth of from 14 to 16 inches. Appellants had granted to the appellees an easement over the 25 foot driveway but title to the driveway was retained by appellants. The appellee became aware of the situation only after the dwelling had been substantially completed. Appellants filed a complaint in equity seeking an injunction against the appellee’s continued encroachment on the driveway. The chancellor found: (1) that the appellee’s encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee’s part regarding the quantum of land he had purchased; (2) that the appellee’s mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the construction had been substantially completed because the encroachment was too slight to be readily discernible and because building materials and other debris in the area tended to obscure it; (4) that the appellants did, however, know that the appellee was violating the zoning ordinance but took no action until -6- 08-2776 CIVIL TERM the dwelling had been practically completed; (5) that the encroachment did not materially interfere with the use of the easement. The chancellor concluded that “the granting of an injunction in this case would be inequitable, doing more harm than the wrong sought to be redressed.” An injunction was denied and a hearing ordered to assess damages resulting from the permanent trespass on appellants’ land. The order was affirmed by the Supreme Court of Pennsylvania which noted that “An injunction is not of right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he has asked to redress.” The Court stated that it was in agreement with the lower court “that the granting of the injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than the benefit to appellants.” The Court further noted that despite this doctrine the lower court would have had no choice but to grant the injunction if it had found that the appellee had deliberately and willfully built upon the appellants’ property or if it believed that he had intentionally taken a chance, thus acting in bad faith. The Court concluded that the chancellor’s finding that the encroachment was a result of an unintentional mistake rather than a willful and intentional trespass was supported by the evidence. sub judice In the case , the limited extent of the encroachment over plaintiffs side line, as we have described in detail, shows that the setting of the retaining wall, with the building of the deck and fence on top, for which the Petries asked for and obtained from plaintiffs’ access to their property for ease of construction, was a mistake by the Petries’ workers as they -7- 08-2776 CIVIL TERM shored up the pool deck. The trespass was neither willful nor intentional and no one knew about it for at least ten years. The encroachment is trivial in effect and de minimis. It is too slight to be readily discernible. It is hidden by the arborvitae trees that were planted on plaintiffs’ land by the Petries and which now have grown tall and thick and benefit plaintiffs by shielding from view the retaining wall, deck, fence and swimming pool. Prior to the expansion the deck and swimming pool were visible from plaintiffs’ property. The encroachment does not harm plaintiffs aesthetically or otherwise and does not materially interfere with their use and enjoyment of their property. To remove the encroachment the Wilsons will have to take down the fence, tear apart a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support. That would create a significant hardship on the Wilsons. Granting an injunction to require the removal of the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Moyerman provides support for denying an injunction to require the removal of the 2 encroachment. The permanent trespass can best be remedied by monetary damages. See __________ 2 Plaintiffs maintain that their request for an injunction is enhanced because the pool deck violates the ten foot side line set back required by the Hampden Township Zoning Ordinance. Defendants argue that there is no side line set back under the Hampden Township Zoning Ordinance that applies to the location of the pool deck. We do not Moyerman have to decide who is correct. The Supreme Court in disregarded evidence that the encroaching dwelling in that case failed to comply with a side yard set back requirement established by a township zoning ordinance. The court declined to place a thumb on the scale in plaintiffs’ favor relating to the set back violation because plaintiffs had failed to timely object to the location of the dwelling, observing that “the juxtaposition of the location of the dwelling to the lot boundary would have rendered obvious a violation of the side yard requirement of the zoning ordinance.” -8- 08-2776 CIVIL TERM Moyerman 3 . There is a pretty area at the edge of the sidewalk in the front of defendants’ property containing some flowers and bushes framed in part by some stones. The boundary marker __________ 3 The Keims instituted a separate suit against the Wilsons for damages caused by the encroachment. The Grahams have been joined as additional defendants. No. 08-6647 Civil. -9- 08-2776 CIVIL TERM that was placed during the surveys shows that this area is slightly over plaintiffs’ side line. Plaintiffs want the part that is over their side line removed. There is no evidence in the record as to which previous owners of 3811 Bellows Drive put in this area or when it was put in. Removing any part of this area that is over plaintiffs’ side line will be easy for the Wilsons to accomplish with no significant cost. The equities in this situation warrant an order granting plaintiffs’ relief. ORDER OF COURT IT IS ORDERED: AND NOW, this day of July, 2009, (1) The complaint of plaintiffs seeking an injunction requiring the removal of an IS encroachment of varying width along 38.34 feet of their side line with defendants’ property, DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends over plaintiffs’ side line. By the Court, Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants :sal -10- CORNELIUS J. KEIM, III : IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : PETER R. WILSON, JR. AND : SHARON J. WILSON, : DEFENDANTS : 08-2776 CIVIL TERM IN RE: EJECTMENT ORDER OF COURT IT IS ORDERED: AND NOW, this day of July, 2009, (1) The complaint of plaintiffs seeking an injunction requiring the removal of an IS encroachment of varying width along 38.34 feet of their side line with defendants’ property, DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends over plaintiffs’ side line. By the Court, Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants :sal