Schneider v. Pascoe

WARD, J.

This is an appeal from a judgment in favor of defendants in an action to restrain them by injunction from maintaining or using that portion of their building claimed to encroach about fourteen inches upon plaintiffs’ adjoining property. Two questions are involved: Was the testimony of a civil engineer sufficient to substantiate an encroachment ; and, was there ever established an agreed boundary line?

Defendants purchased their property in 1903. In 1918, one Price built a private garage on his adjoining property. Shortly thereafter a neighbor called defendants’ attention to the fact that the Price garage was encroaching upon the Pascoe property. Thereupon Price and Pascoe, after making measurements from certain surveyor’s stakes in the neighborhood, agreed that there was an encroachment, and Price moved his garage in accordance with their findings. There was testimony that a lath fence attached to this garage further marked the property line of the parties. In referring to a stucco business building erected by defendants in 1922, there was testimony that there was “a space of about four

[711]

or five inches between that [the building] and the little fence. Q. Do you refer to the little fence—is that the agreed line between you and Mr.

Priceí

A. Yes.” Prom the entire record some doubt might have existed relative to the date of the erection of the fence, but this was a question of fact for determination by the trial court. The structure erected by defendants in 1922 consisted of undertaking parlors, built at the rear of their property, with garage accommodations for four ambulances. Subsequently, in 1923 they erected a brick building on the front of the property, extending back seventy-five feet, and some six or seven feet beyond the east end of the private garage on the property formerly owned by Price. It is in connection with one of the walls of this brick building that the encroachment is claimed. In constructing the building, the contractor measured from surveyor’s stakes, the agreed boundary line and the line of the stucco structure in the rear. According to his measurements, the brick building was erected clearly within the confines of defendants’ property. The plaintiffs herein testified that they purchased their property in 1937; the present action was filed in 1938. Between such times they tore down the old fence, obliterated the post holes and erected a fence in accordance with their ideas as to the property line.