Loading...
HomeMy WebLinkAbout2008-2776 Civil (2) 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: MOTION OF PLAINTIFFS FOR POST-TRIAL RELIEF OPINION AND ORDER OF COURT Bayley, J., October 1, 2009:-- On July 13, 2009, following a bench trial, an order was entered denying relief to plaintiffs, Cornelius J. Keim, III and Linda L. Keim, who sought an injunction against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, to remove an encroachment of a varying width along 38.34 feet of their 128.94 feet sideline with defendants’ property. Plaintiffs filed a motion for post-trial relief which was briefed and argued on September 24, 2009. An opinion filed in support of the order of July 13, 2009, is incorporated in this opinion. I. Plaintiffs maintain that “the court erred in finding that the pool-related encroachments were innocently installed when there is no evidence to support the finding.” To the contrary, the reasonable inference drawn from the evidence was that the encroachment was innocently installed. As set forth in the prior opinion: 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. These facts do not support a reasonable inference that the Petries, after telling the Keims what they were going to do and obtained their permission for the temporary right to enter their land to construct an extended deck and retaining wall, acted in bad faith by intentionally taking a chance of encroaching on the Keims’ property. II. Plaintiffs maintain that “the court erred in finding that the loss of 58.78 square feet of a half-acre lot is de minimis.” As set froth in the prior opinion: 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 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. Plaintiffs state in their brief that, “No case can be located allowing such a large Moyerman v. encroachment in place on such a small lot as the Keims’ lot.” In Glanzberg, 391 Pa. 387 (1958), which provided support for denying an injunction in the present case,Glanzberg owned a lot with frontage of 80.38 feet, a depth of 175 feet, and a rear width of 58.89 feet. That is 12,163.15 square feet. The encroachment on a sideline that the Supreme Court concluded was de minimis ran approximately ten feet at a depth from 14 to 16 inches. Thus, the de minimis encroachment was slightly smaller than the encroachment in the present case, but the lot was significantly smaller than the Keims’ lot. There is no specific size that makes an encroachment de minimis. -2- 08-2776 CIVIL TERM Whether it is de minimis involves its relationship to the affected land. As we previously stated, no one even knew about the encroachment onto the Keims’ land for at least ten years after it was constructed. It is too slight to be readily discernable. It is hidden by the arborvitae trees that were planted on plaintiffs’ land by the Petries and which have now grown tall and thick and benefit plaintiffs by shielding from view the retaining wall, deck, fence and swimming pool on defendants’ property. The small area of the encroachment does not harm plaintiffs aesthetically or otherwise does not materially interfere with their use and enjoyment of the property. It is trivial and de minimis. III. Plaintiffs maintain that “the court erred in failing to take into account violations of the Hampden Township Ordinances.” As set forth in the prior opinion, we relied on Moyerman in not making a determination of whether the retaining wall and pool deck, as claimed by plaintiffs and denied by defendants, violated a ten foot sideline set back Moyerman, in the Hampden Township Zoning Ordinance. In the Supreme Court disregarded evidence that an encroaching dwelling, which was determined to be de minimis, failed to comply with a side yard set back requirement in a township zoning ordinance. Plaintiffs try to distinguish the facts in the present case from those in Moyerman because here the encroachment is a retaining wall and pool deck while in Moyerman the encroachment was a dwelling. That is a distinction without a difference because both encroachments are physical structures. IV. Plaintiffs maintain that “the court erred in its interpretation of the hardship standard for removal of boundary encroachments.” They argue that the court failed to -3- 08-2776 CIVIL TERM address any of the substantial and material hardship raised by them at trial, while at the same time overstating the Wilsons’ alleged hardship beyond anything suggested at trial. They set forth in their brief: “First and foremost allowing the permanent encroachment to remain creates a cloud on title to 58.70 square feet of the Keims’ land. Title to the encroachment is in limbo.” That is legally incorrect. The Keims’ title to their property is not affected by what is now a continuing trespass any more than their title would be affected if a part of their property was subject to either an express or prescriptive easement. They have not lost title to the 58.70 square feet encroaching on their property. They are entitled to recover any damages suffered as a result of what is now a continuing trespass on their property. Plaintiffs take issue with the following finding: “To remove the encroachment the Wilsons will have to take down the fence, tear out a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support.” The evidence supports this finding and the conclusion that to do so would create a significant hardship on the Wilsons, and to require them to remove the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Plaintiffs argue that the court ignored their testimony regarding erosion and loss of use of their land. We did not mention it because the little erosion on the bank leading up to the retaining wall, which area is heavily shaded, is insignificant. For the foregoing reasons, the following order is entered. ORDER OF COURT -4- 08-2776 CIVIL TERM AND NOW, this day of October, 2009, the motion of plaintiffs for post-trial IS DENIED. relief, -5- 08-2776 CIVIL TERM By the Court, Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants :sal -6- 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: MOTION OF PLAINTIFFS FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW, this day of October, 2009, the motion of plaintiffs for post-trial IS DENIED. relief, By the Court, Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants :sal