Glinn v. Silver , 64 Pa. Super. 383 ( 1916 )

Opinion by

Kephart, J.,

The plaintiff filed this bill for a mandatory injunction to compel the defendants to remove an encroachment or overlap between their própérties at a point some distance from the front propérty lines^ This overlap consisted of a bulge in the wall, and that it extended on plaintiff’s land from nothing to three-quarters of fin inch is not disputed. It was cláimed by the defendants that it was due to the careléss 'work done by the plaintiff in building the defendants’ wall. He erected the wall under a contract with the defendants before he became the owner of the adjoining property. The testimony as to the cause of the bulge was contradictory, and the court below, on ample relevant testimony, found as a fact that the bulge was wholly due to the negligent manner in which the plaintiff built the wall and that this careless work was the primary and éfficient cause of the bulge.

The occupation, unlawfully, of a portion of a lot of ground does not convey title to it to the defendant nor does it affect the plaintiff’s title or his right to recover damages for the trespass. But a mandatory injunction is a matter of discretion with a court of equity, and it will not be granted to remove a building or tear down a portion of a wall when it will operate inequitably or oppressively, or where the owner or one Avho afterwards becomes the owner is actively responsible for the encroachment. Each case of a permanent obstruction must be decided upon its own circumstances: Mayer’s App., 73 Pa. 164.

As the plaintiff was responsible for the encroachment it would clearly be inequitable and unjust for the court to direct the defendants to remove it.

The assignments of .error with respect to the admission of testimony are Avithout merit. The controlling point in the case was decided, as a question of fact, ad-' versely to the appellant, upon evidence which amply warranted such finding.

The assignments of error are overruled and the decree of the court beloAv is affirmed.