Real Property – Encroachment – Civil Practice – Mandatory Injunction – Continuing Trespass – Laches – No Delay or Change

Where the defendants built their house on land owned by the plaintiff’s predecessor, both sides believing the defendants’ house was being built entirely on the defendants’ land, now that the plaintiff has learned the defendants’ house encroaches on her land, she is entitled to have them move it.

We affirm the trial court’s permanent mandatory injunction.

Before addressing the substance of the defendants’ appeal, we note that their brief fails in several ways to comply with our Rules of Appellate Procedure. The defendants’ brief is single- spaced, in violation of N.C. R. App. P. 26(g). Further, even though their brief is typed in the proportionally spaced type Times New Roman, the defendants failed to include a certificate indicating compliance with the required page limitations and word-count limits, as required by the rules. We also note the statement of facts in the defendants’ brief fails to include citations to page references in the record, and the brief does not include the required statement of the court’s standard of review. Due to numerous violations of our Rules of Appellate Procedure, we invoke our powers pursuant to Rule 25(b), and order as a sanction that defense counsel pay the printing costs of this appeal.

The trial court found the cost to the defendants to move the house would be approximately $10,000 to $15,000. The trial court also found that in initially moving the house to its present location in 1985, the defendants paid $12,800 in expenses, and that the house currently had a tax value of approximately $78,000.

We hold the trial court’s findings, which are binding upon this court, are sufficient to satisfy the requirements of both Clark v. Asheville Contracting Co., 72 N.C. App. 143, 323 S.E.2d 765 (1984), modified in part, aff’d in part, and remanded, 316 N.C. 475, 342 S.E.2d 832 (1986), and Young v. Lica, 156 N.C. App. 301, 576 S.E.2d 421 (2003). The instant case is distinguishable from Clark, in that the cost and time associated with removing the encroachment is minimal in comparison with that in Clark. Also, the instant case involves the removal of an encroaching structure, whereas Clark involved the removal of waste that constituted a nuisance and was not actually located on the plaintiffs’ properties. Moreover, this court has held that when an encroachment and continuing trespass has been established, and the trespass is being committed by an entity that is not quasi-public, then the plaintiff is entitled to the relief of having the encroaching structure removed.

As the trial court properly found that the defendants’ house encroached onto the plaintiff’s property by approximately 22 feet and as the defendants are not a quasi-public entity, the plaintiff is entitled to a mandatory injunction ordering the removal of the encroaching structure.

The trial court found as fact that both the defendants and the plaintiff’s predecessor in title were under a mutual mistake of fact as to the location of the subject house. When the house was placed on the property, all parties believed the house was being located entirely upon property owned by the defendants. Also, at the time the plaintiff received her property by deed, she had no knowledge that the house was located partially on her property until she had it surveyed approximately three years after receiving the property.

The doctrine of laches applies only when circumstances have so changed during the lapse of time that it would be inequitable and unjust to permit the prosecution of the action. The trial court concluded in part, “Defendants failed to show the passage of time attributed to Plaintiff’s predecessor in title could be attributed to the Plaintiff, … also … the Defendants have failed to show any injury or prejudice to the Defendant[s] as a result of the passage of time in this case.”

This conclusion of law is supported by the trial court’s findings that neither the plaintiff nor her predecessor in title was aware of the improper location of the house, and that the plaintiff had no knowledge of the house’s improper location until she caused a survey to be done approximately three years after she received the property.

Further, there is no evidence before this court indicating that the defendants suffered any specific injury by the plaintiff’s initiating this action three years after receiving the property. The plaintiff promptly filed the instant action upon learning of the encroachment; thus, she did not delay unjustly the prosecution of her action thereby causing injury or prejudice to the defendants.

Affirmed; sanctions ordered.

Cornelius v. Corry. (Lawyers Weekly No. 06-16-1151, 10 pp.) (Barbara Jackson, J.) Appealed from Rowan County District Court. (Charlie Brown, J.) Unpublished. N.C. App.