#27748-aff in pt & rev in part-SLZ

2016 S.D. 94

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                       ****
KENNETH HOFFMAN,                              Plaintiff and Appellee,

      v.

BOB LAW, INC. and
BOB LAW, individually,                        Defendants and Appellants.


                                       ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    YANKTON COUNTY, SOUTH DAKOTA

                                       ****

                   THE HONORABLE CHERYLE W. GERING
                                Judge

                                       ****

DANIEL K. BRENDTRO
DENNIS DUNCAN
AMANDA W. ENGEL of
Zimmer, Duncan & Cole, LLP
Sioux Falls, South Dakota                     Attorneys for plaintiff
                                              and appellee.

MARK D. FITZGERALD
RONALD E. TEMPLE of
Fitzgerald, Vetter, Temple & Bartell
Norfolk, Nebraska                             Attorneys for defendants
                                              and appellants.

                                       ****

                                              CONSIDERED ON BRIEFS
                                              ON OCTOBER 3, 2016

                                              OPINION FILED 12/14/16
#27748

ZINTER, Justice

[¶1.]        A homeowner whose fixtures encroached on adjoining landowner’s

property sued for an implied easement to keep the encroachments on the adjoining

property. The adjoining landowner counterclaimed for trespass and sought a

mandatory injunction to compel removal of the encroachments. The circuit court

denied the homeowner’s claim for an implied easement. On the adjoining

landowner’s counterclaim, the court ruled the encroachments constituted a

trespass. Nevertheless, the court denied the adjoining landowner’s request for a

mandatory injunction to remove the encroachments. The court awarded the

adjoining landowner nominal damages and ordered removal if the encroachments

became subject to relocation in the future. Adjoining landowner appeals the denial

of its request for the mandatory injunction and the order allowing the

encroachments to remain until they are relocated in the future. We affirm in part,

reverse in part, and remand.

                           Facts and Procedural History

[¶2.]        Bob Law, Inc. (the “Corporation”), owned by Bob Law, is an excavation

and land development company that owned a real estate development west of

Yankton known as the Crestview Addition. The Corporation entered into an

agreement with Rick DeJager to jointly develop Crestview. DeJager was the

general contractor responsible for the construction and sale of the homes and lots.

The Corporation was to grade the roads and do all the dirt and excavation work.

The development was surveyed, and seven pins were placed to mark the boundaries

of Lot 3. The pin marking the southwest corner of the lot was subsequently lost.


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Lot 3 is burdened by a ten foot utility easement on the west side. The Corporation

owns the unplatted lot west of Lot 3, which is referred to by the parties as Lot 4.

[¶3.]         Construction on Lot 3 began in October 2003 when the Corporation

still owned the lot. The Corporation excavated the basement for a house and it

graded a dirt driveway. Due to construction difficulties, the Corporation placed the

basement twenty feet west of its planned location. 1 In November 2003, the

Corporation directed an electrical contractor to place a transformer on the property

line between Lots 3 and 4. However, the transformer was mistakenly placed on Lot

4, outside of the utility easement, fourteen feet west of the property line. Both the

Corporation and DeJager continued building under the mistaken belief that the

transformer marked the property line.

[¶4.]         After the basement was excavated, the Corporation roughed in a water

line. A septic system was also installed. The parties disputed when the system was

installed and who installed it. After the Corporation conveyed Lot 3 to DeJager and

his wife on December 30, 2003, DeJager installed a concrete retaining wall, concrete

pad, and lamp pole. 2 He also poured concrete for the driveway that had been

graded by the Corporation. Parts or all of these improvements were mistakenly

located on Lot 4 instead of Lot 3. DeJager and his wife lived in the home until 2009




1.      DeJager testified that he raised concerns to Law about the septic tank
        location after moving the basement. According to DeJager, Law replied, “I
        own this land.”

2.      At some point a propane tank was installed on the concrete pad; however, the
        court did not determine who installed it.

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or 2010 when they defaulted on their loan and declared bankruptcy. Lot 3 was

subsequently conveyed to the bank that held the mortgage.

[¶5.]         In May 2011, Appellee Kenneth Hoffman entered into an agreement to

purchase Lot 3 from the bank. Although Hoffman could have had the lot surveyed

at no expense, he was in a hurry to close on the home and decided to forego a

survey. Closing took place on June 10. Hoffman testified that the day after closing,

Law contacted Hoffman and informed him that there was an encroachment on Lot

4. 3 The two met on June 12. Law measured the property lines and noted the

encroachments on Lot 4. After the meeting, Law proposed to move the septic

system’s leach field for $150,000 and sell Hoffman an easement for the septic tank

for $25,000. 4 Hoffman testified that when he did not immediately accept this

proposal, Law threatened to dig out the septic system.

[¶6.]         Hoffman obtained a temporary restraining order (and later a

preliminary injunction) prohibiting Law and the Corporation from removing the

septic system. Hoffman’s underlying complaint claimed that he had acquired an

implied easement on Lot 4 for the encroachments. The Corporation counterclaimed

for trespassing. 5 The Corporation sought money damages (rental value and

diminution in value of the lot) as well as a mandatory injunction to remove the

encroachments.


3.      Law claimed he did not learn of any encroachments until June 11.

4.      Moving the septic system would require the removal of twelve to fifteen feet
        of dirt, installing a lift station, and landscaping a sloped area.

5.      Although the complaint and counterclaim included Bob Law as a defendant,
        he was only a party for purposes of the temporary restraining order.

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[¶7.]         A two-day court trial was held in December 2015. A survey showed

that the septic tank, propane tank, concrete pad for the propane tank, lamp pole,

and portions of the concrete retaining wall and driveway encroached on a small

portion of Lot 4. The circuit court found that the septic system was installed by the

Corporation before the lot was conveyed to DeJager and that DeJager installed the

other encroachments.

[¶8.]         The court denied Hoffman’s claim for an implied easement, a ruling

that he does not appeal. 6 On the Corporation’s counterclaim, the court ruled that

the encroachments constituted a trespass. But because the Corporation failed to

present evidence of damages, 7 the court awarded $1 in nominal damages. The court

also denied the Corporation’s request for an injunction. It reasoned that the

Corporation had an adequate remedy at law (damages); the encroachments were on

a small sliver of land that could not be used due to the utility easement; Hoffman

did not install the encroaching items; and the cost to remove the encroachments

would be disproportionate to any benefit to be gained by the Corporation. The court


6.      The court considered the claim as a request for an implied easement for prior
        use. See Thompson v. E.I.G. Palace Mall, LLC, 2003 S.D. 12, ¶ 14,
        657 N.W.2d 300, 305. The court denied the request relating to the septic
        system because when unity of title was severed upon conveyance of Lot 3 to
        DeJager, the use of the septic system was not “so long continued and so
        obvious as to show that it was meant to be permanent.” The court denied the
        request for an implied easement for the remaining encroachments because
        those encroachments were not in place, and thus not in use, at the time unity
        of title was severed when the Corporation conveyed Lot 3 to DeJager.

7.      The Corporation claimed diminution in value damages relating to Lot 4. Law
        testified that he received an offer of $65,000 for the property, far below his
        asking price of $140,000. The circuit court did not find this damage evidence
        credible. The Corporation’s attorney conceded in closing argument that no
        evidence of actual damages was presented.

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further ordered that the encroachments would not be subject to a current or future

court order of removal; but if the encroachments were subject to relocation by

Hoffman or his successors in interest, they would have to be removed from Lot 4

and relocated on Lot 3.

[¶9.]        The Corporation appeals. It argues that the circuit court erred in

denying an injunction requiring Hoffman to remove the encroachments. It also

argues that nominal damages are an inadequate remedy and the court should not

have allowed the encroachments to remain. We first address the court’s denial of

the Corporation’s request for an injunction compelling removal of the

encroachments. We then address the court’s remedy: an award of nominal damages

and allowing the encroachments to temporarily remain.

                                       Decision

Injunctive Relief

[¶10.]       We recently clarified our standard of review for the grant or denial of

an injunction. Magner v. Brinkman, 2016 S.D. 50, ¶ 19, 883 N.W.2d 74, 82-83. We

first determine whether an injunction was statutorily authorized under SDCL 21-8-

14, a question of law we review de novo. Id. ¶ 19, 883 N.W.2d at 83. If the

injunction was authorized, “the court’s subsequent decision to grant or deny the

injunction is reviewed for an abuse of discretion.” Id. An abuse of discretion is an

error of law or “discretion exercised to an unjustified purpose, against reason and

evidence.” Stahl v. Pollman, 2006 S.D. 51, ¶ 9, 716 N.W.2d 794, 796. Findings of

fact will not be set aside unless clearly erroneous. Strong v. Atlas Hydraulics, Inc.,

2014 S.D. 69, ¶ 10, 855 N.W.2d 133, 138.


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[¶11.]       The Corporation contends that it was statutorily entitled to a

mandatory injunction compelling removal of the encroachments. Under SDCL 21-8-

14(1), an injunction may be granted if “pecuniary compensation would not afford

adequate relief.” Generally, when structures encroach on private property,

pecuniary compensation will not afford adequate relief to the landowner. That is

because denying an injunction to remove an encroachment and awarding money

damages amounts to private eminent domain, and “no one should be permitted to

take land of another merely because he is willing to pay a market price for it.” 1

Dan B. Dobbs, Law of Remedies § 5.10(4), at 816 (2d ed. 1993); see also Kratze v.

Indep. Order of Oddfellows, 500 N.W.2d 115, 120 (Mich. 1993); Graham v. Deutsche

Bank Nat’l Tr. Co., 768 S.E.2d 614, 617 (N.C. Ct. App. 2015); Williams v. S. & S.

Rentals, Inc., 346 S.E.2d 665, 668-69 (N.C. Ct. App. 1986). Further, in such cases,

the encroacher could obtain a property right by adverse possession, which could

result in a complete loss of title. See SDCL 15-3-13; Underhill v. Mattson, 2016 S.D.

69, ¶¶ 11-17, 886 N.W.2d 348, 352-54. Because pecuniary compensation often fails

to provide adequate relief in encroachment cases, we hold that the injunction was

authorized. See Graven v. Backus, 163 N.W.2d 320, 325 (N.D. 1968) (“The general

rule is that a mandatory injunction is a proper remedy to invoke against an

adjoining landowner to compel him to remove an encroachment.”).

[¶12.]       Authorization for an injunction does not, however, equate with

entitlement to an injunction. In determining whether to grant or deny an

injunction, a number of factors are considered, including:

             (1) Did the party to be enjoined cause the damage? (2) Would
             irreparable harm result without the injunction because of lack of
             an adequate and complete remedy at law? (3) Is the party to be
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#27748

             enjoined acting in bad faith or is the injury-causing behavior an
             innocent mistake? (4) In balancing the equities, is the hardship
             to be suffered by the enjoined party disproportionate to the
             benefit to be gained by the injured party?

Strong, 2014 S.D. 69, ¶ 11, 855 N.W.2d at 138.

[¶13.]       Here, with respect to the first and third factors, the circuit court found

that Hoffman did not cause the damage and he was not acting in bad faith. The

record supports these findings. The evidence reflects that the Corporation was

responsible for the location of the septic system and that the remaining

encroachments were installed by the Corporation’s development partner, DeJager.

Further, we agree with the circuit court’s finding that Hoffman’s failure to obtain a

survey did not constitute bad faith.

[¶14.]       With respect to the second factor, for the reasons previously expressed,

see supra ¶ 11, pecuniary compensation would not have afforded adequate relief.

Neither damages nor ejectment will afford the landowner adequate relief in most

cases. 1 Dobbs, supra, § 5.10(4), at 815-16. Encroaching structures pose the threat

of adverse possession. Without an injunction, a trespasser may eventually obtain

title, which is an injury that “go[es] to the destruction of the estate.” See Beatty v.

Smith, 14 S.D. 24, 84 N.W. 208, 210 (1900); see also In re Estate of Siebrasse,

2002 S.D. 118, ¶ 9, 652 N.W.2d 384, 386 (noting the availability of an equitable

remedy because land is unique); O’Hagan v. United States, 86 F.3d 776, 783

(8th Cir. 1996) (“More fundamentally, monetary relief fails to provide adequate

compensation for an interest in real property, which by its very nature is considered

unique.”). Thus, the second factor weighs in favor of granting an injunction.



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[¶15.]       However, the fourth factor plays the dominant role in encroachment

cases. Because of their effect on real property interests, encroachments have “posed

special problems and produced special solutions.” 1 Dobbs, supra, § 5.10(4), at 815.

On the one hand, “no one should be permitted to take land of another merely

because he is willing to pay a market price for it.” Id. at 816; see also Kratze,

500 N.W.2d at 120; Graham, 768 S.E.2d at 617; Williams, 346 S.E.2d at 668-69. On

the other hand, requiring removal of an encroachment may constitute economic

waste if the encroaching structure must be destroyed. 1 Dobbs, supra, § 5.10(4),

at 816. Thus, the “dominant approach in the encroachment cases is to balance the

relative hardships and equities and to grant or deny the injunction as the balance

may seem to indicate.” Id. The balancing of equities “encourages the denial of

injunctive relief where the expense or hardship to be suffered by the [trespasser] is

disproportionate to the small benefit to be gained by the injured party.” Foley v.

City of Yankton, 89 S.D. 160, 166, 230 N.W.2d 476, 479 (1975). A court may deny

an injunction if the hardship to the trespasser—e.g., the cost to remove the

encroachment and loss of value to the remaining structure—is disproportionate to

any benefit gained by the landowner. Graven, 163 N.W.2d at 325; 1 Dobbs, supra,

§ 5.10(4), at 818; see also Harksen v. Peska, 1998 S.D. 70, ¶ 33, 581 N.W.2d 170, 176

(holding it would be inequitable to compel removal of a $100,000 home that violated

a restrictive covenant but did not inflict any damages on other landowner, even

though home builder was on notice of the restrictive covenant).

[¶16.]       In balancing the equities relating to the septic system, the circuit court

found that “the hardship that would be suffered by Mr. Hoffman is disproportionate

to any benefit to be gained by Bob Law, Inc., or Bob Law in ordering the removal of”
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#27748

the septic system. 8 The record supports this finding. The court found it would have

cost $150,000 to move the leach field and $25,000 for an easement to keep the septic

tank where it was. The court also found that this encroachment was on a “small

sliver of land” and that “clearly there [was] no way that anything [could] be built in

that corner” because of the utility lines. “[N]either extortion nor economic waste

that may be entailed in destroying a structure is desirable.” 1 Dobbs, supra,

§ 5.10(4), at 816. Additionally, Hoffman played no role in contributing to this

encroachment. The court specifically found that the Corporation excavated the hole

for the septic tank at its current location while Lot 3 was still owned by the

Corporation. 9 Whether the landowner contributed to the encroachment is a factor

to be taken into consideration. See id. at 817. Balancing all of the relevant factors,

we agree that the hardship to be suffered by Hoffman in removing this

encroachment that the Corporation created is disproportionate to any harm that

would be suffered by the Corporation. The circuit court did not abuse its discretion

in denying an injunction to remove the septic system.



8.    The Corporation contends that the relative-hardship test should not apply
      because Hoffman acted willfully and with full knowledge of the Corporation’s
      rights and the consequences that might ensue. See Foley, 89 S.D. at 166,
      230 N.W.2d at 479. However, the circuit court specifically found that
      Hoffman did not act in bad faith, and the record does not support the
      Corporation’s factual assertion regarding Hoffman’s knowledge.

9.    The Corporation denies excavating the hole for the septic tank prior to
      conveying the property to DeJager. However, there is sufficient evidence in
      the record to support the court’s contrary finding. The Corporation did all the
      dirt work on the property, and DeJager testified that he did not dig the hole
      for placement of the septic tank. Law also signed a receipt for a septic tank
      on November 19, 2003, around the same time the Corporation finished
      digging the basement.

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[¶17.]         The Corporation contends that even if the septic system need not be

removed, Hoffman should still be required to remove the lamp pole, concrete pad,

propane tank, and encroaching portions of the concrete retaining wall and

driveway. The Corporation correctly points out that the circuit court did not

balance the relative hardships and equities to remove these encroachments. 10 And

the injunction should only be denied if there is disproportionality. See Clear Lake

Riviera Cmty. Ass’n v. Cramer, 105 Cal. Rptr. 3d 815, 825 (Cal. Ct. App. 2010)

(“[T]he hardship to the [trespasser] from granting the injunction ‘must be greatly

disproportionate to the hardship caused [landowner] by the continuance of the

encroachment and this fact must clearly appear in the evidence and must be proved

by the [trespasser].’”).

[¶18.]         In this case, removal of the remaining encroachments may be unlike

the removal of an entire building or structure at an enormous and disproportionate

expense. Compare Amkco, Ltd. v. Welborn, 21 P.3d 24, 29 (N.M. 2001) (denying

removal when removal would result in loss of $188,837 in expenses, plus annual

profits, and a $1,250,000 project when value of encroached land was $14,700), and

Graven, 163 N.W.2d at 326 (denying removal when cost to remove and rebuild

encroachment was $5,300 and value of the portion of land encroached on was

between $8.50 and $9.00), with The Highlands, Inc. v. Hosac, 936 P.2d 1309, 1313-

14 (Idaho 1997) (affirming grant of injunction to remove portion of driveway and


10.      It appears the circuit court rested its decision primarily on its finding that
         the Corporation had an adequate remedy at law. The court did not consider
         the effect that the encroachments had on the Corporation’s property interests
         when balancing the equities, see supra ¶ 16, and instead found that the
         parties were “at least on equal footing.”

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landscaping when homeowner “would not suffer a loss of value due to removal of the

encroachment”), and Royse v. Easter Seal Soc’y for Crippled Children & Adults, Inc.,

256 N.W.2d 542, 546 (N.D. 1977) (stating injunction is proper remedy for

encroachment over three-quarters of an easement that significantly decreased

easement’s value). See also Harksen, 1998 S.D. 70, ¶ 33, 581 N.W.2d at 176. The

remaining encroachments are separate from the main structure, and some might be

removed without loss of enjoyment or damage to the home. Further, there is

evidence that both parties were at least somewhat aware of the encroachments

prior to June 10, 2011, when Hoffman purchased the property; and Hoffman was, in

the court’s words, negligent in failing to have a survey conducted before purchasing

the property. See 1 Dobbs, supra, § 5.10(4), at 817 (“Even if the [trespasser] is

merely negligent, that will weigh as one factor against him and in favor of the

mandatory injunction.”). 11 Although we express no opinion on the weight to be

given to these factors, we reverse and remand because the circuit court did not

balance the equities and hardships, which is the dominant consideration for this

type of case. On remand, the court should balance the equities on the existing

record relating to the lamp pole, concrete pad, propane tank, and encroaching

portions of the retaining wall and driveway.




11.   The Corporation argues that negligence is equivalent to bad faith. The
      Corporation, however, relies on inapposite cases involving insurance or the
      covenant of good faith and fair dealing. Moreover, the parties have not
      briefed the question whether the failure to order a survey constitutes
      negligence. Consequently, we express no opinion on that issue. We leave
      these issues to the circuit court on remand.

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Encroachment Remedy—Nominal Damages and Allowing an Encroachment to

Temporarily Remain

[¶19.]         In addition to its argument claiming entitlement to injunctive relief,

the Corporation argues that the court lacked the legal power to award Hoffman an

“effective injunction” prohibiting removal of the encroachments 12 while only

awarding the Corporation nominal damages. The Corporation contends that the

circuit court’s denial of Hoffman’s claim for an implied easement and the court’s

conclusion that damages were an adequate remedy at law 13 deprived the court of

jurisdiction to grant Hoffman any equitable relief. We disagree.

[¶20.]         It is recognized that the appropriate remedy in encroachment cases

may include permitting encroachments to remain such that the trespasser obtains

an equitable easement. See Amkco, 21 P.3d at 29; 3 Tiffany Real Property § 815.50,

Westlaw (3d ed.) (database updated Sept. 2016). Where a court refuses to order

removal of encroachments after balancing the equities, the encroaching party

receives an easement so that the landowner “can recover possession of the land in

the event that the structure is removed in the future.” Amkco, 21 P.3d at 29; see

also Christensen v. Tucker, 250 P.2d 660, 665 (Cal. Dist. Ct. App. 1952) (holding



12.      The Corporation claims that the circuit court’s order prohibited removal of
         the encroachments. However, the circuit court’s final written judgment did
         not prohibit removal. The court’s judgment provides that the encroachments
         are “not subject to a court order of removal now or in the future” unless they
         are subject to relocation by Hoffman or his successors in interest.

13.      For the reasons stated supra ¶ 11, we disagree with the circuit court’s
         conclusion that the Corporation had an adequate remedy at law that
         precluded injunctive relief. Our disagreement does not, however, affect the
         remedies available to Hoffman. Those remedies are discussed infra ¶ 20.

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trespasser should be granted an easement rather than quiet title); 1 Dobbs, supra,

§ 5.10(4), at 818. Thus, the circuit court did not abuse its discretion in refusing to

order removal of the septic system, which effectively granted Hoffman a temporary

easement that will remain in effect until the encroachment is relocated by Hoffman

or his successors in interest. The court also did not err in awarding only nominal

damages. As the court noted, the Corporation failed to introduce any credible

evidence of damages; i.e., diminution in value, rental value, or any other measure of

past and future damages as a result of the encroachments. See Zerr v. Heceta Lodge

No. 111, 523 P.2d 1018, 1024-25 (Or. 1974) (reversing an order requiring removal of

encroachment and affirming the award of nominal damages for the resulting

easement where landowners offered insufficient evidence of actual damages).

                                      Conclusion

[¶21.]       With respect to the septic system, the circuit court did not err in

denying an injunction to remove it, allowing it to temporarily remain, and awarding

nominal damages. Hoffman would suffer disproportionate hardship if he were

compelled to remove the septic system, and the Corporation failed to introduce

evidence of actual damages. However, we reverse and remand for reconsideration of

the remaining encroachments. On remand, the court should balance the relative

hardship and equities relating to those encroachments.

[¶22.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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