Haitsch v. Duffy

Citations

• 10 Del. Ch. 280
• 92 A. 249
• 1914 Del. Ch. LEXIS 16

Syllabus

<p>The owner of land on which a part of the building of an adjoining owner encroaches may remove the portion of the building constituting the encroachment, or sue for damages, or maintain ejectment.</p> <p>The remedy by ejectment against an encroachment on land by the building of an adjoining owner is not full and adequate, as a verdict for plaintiff will not bar other actions by defendant, and the description.of the premises is so indefinite that the plaintiff at his peril points out to the sheriff the land of which possession is to be given, and a Court of Chancery will therefore award a mandatory injunction to enjoin the continuance of the encroachment and compel a removal thereof.</p> <p>A landowner is not deprived of his remedy against an encroachment by the building of an adjoining landowner because the encroachment was in existence when he bought his land.</p> <p>Though a court of equity will always consider the equities between the parties, and under some circumstances balance convenience and injuries, or even deny equitable relief because a great injury will be done, with little or no benefit to complainant, questions as to relative convenience and injury do not properly arise on demurrer to a bill for a mandatory injunction, challenging the equity of the bill and the jurisdiction of the court.</p> <p>Where an owner of two adjoining lots, one of which was subject to a mortgage, erected a building on the other lot, part of the wall of which was on the mortgaged lot, a subsequent owner of the mortgaged lot under a sale on foreclosure was entitled to a mandatory injunction to prevent the owner of the building from maintaining windows in such wall, and to compel their removal, in order that a permanent right to free access of light and air over his lot might not be acquired; and though this would probably be rendered unnecessary by- the removal of the windows, the owner of the mortgaged lot was also entitled to an injunction to prevent the acquisition of easeme