Tort/Negligence – Real Property – Trespass – Declaratory Judgment – Neighbors’ Fence – Across Property Line – Remedies – Injunction – Removal

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Mathis v. Hoffman (Lawyers Weekly No. 11-07-0621, 6 pp.) (John C. Martin, Ch.J.) Appealed from Gaston County Superior Court. (Mark E. Klass, J.) N.C. App. Click here for the full-text opinion.

Holding: After her neighbors mistakenly built their fence on her property, defendant was not entitled to choose her remedy. It was within the trial court’s authority to enter an injunction allowing plaintiffs to move the fence to their own property at their expense.

We affirm summary judgment for plaintiffs.

Contrary to defendant’s argument, the court in Beacon Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E.2d 434 (1966), never held that a defendant property owner must be allowed to choose what remedy she prefers to offer a plaintiff who has mistakenly constructed an improvement on the defendant’s property.

This case is also distinguishable from Siskron v. Temel-Peck Enterprises, 26 N.C. App. 387, 216 S.E.2d 441 (1975), because, in that case, allowing the contractor to remove its improvement would have required the hotelier to close his hotel temporarily and lose income. Here, plaintiffs, not defendant, will bear the financial burden of the fence relocation, including any damage that may be caused to defendant’s property.

The fence originally cost $15,000, while removing and relocating the fence will cost only $2,000. Given the disparity between these two amounts, it was within the discretion of the trial court to find it equitable to allow plaintiffs to remove and relocate the fence. In light of these considerations, we hold the trial court did not exceed its authority in granting plaintiffs’ motion for summary judgment.

Affirmed.