Wagner v. King

Citations

• 41 Pa. Super. 292
• 1909 Pa. Super. LEXIS 56

Syllabus

<p>Equity — Mistake as to location of wall — Injunction—Trespass—Bill-Cross bill.</p> <p>1. Where the plaintiff in a bill in equity prays for an injunction to restrain the defendant from interfering with a wall, and the defendant in a cross bill prays for a mandatory injunction to compel the plaintiff to remove the wall, and the court finds as a fact that the defendant had licensed the plaintiff to build the wall along the division line on defendant’s ground, but that the plaintiff by mistake had erected the wall so that a portion of it encroached over the line designated by the defendant, the court will enter a decree on the cross bill so as to require the wall to be so moved or reconstructed that it shall conform to the line contemplated by the agreement between the parties. In such a case the court will not require it to be wholly removed from the defendant’s premises, and wholly reconstructed on those of the plaintiff.</p> <p>2. The fact that the plaintiff in the bill filed a disclaimer to the strip of land on which the wall encroached does not put the defendant in the possession or enjoyment of his property, nor secure to him the incidents of ownership to which, both in law and equity, he is entitled. It is therefore proper that so much of the wall as encroached over the line agreed upon should be removed.</p>