MIQUEL BRANDAO and DULCE BRANDAO v. DRISCOLL DOCANTO, RENDA MILLSAP, Individually and As The Trustees of the 16 MAGAZINE STREET CONDOMINIUM TRUST

This case was filed on June 5, 2006 by plaintiffs Miquel Brandao and Dulce Brandao (“plaintiffs” or “Brandaos”), who own the property located at 28 Dunmore Street, Boston (Roxbury), Massachusetts. Plaintiffs alleged an encroachment, onto their land, by the building on the abutting parcel, 16 Magazine Street. The defendants each own of record one of the two units of the condominium to which the land and building at 16 Magazine Street have been devoted, pursuant to a recorded master deed. Driscoll Docanto (“Docanto”) is the developer of 16 Magazine Street, and owns Unit 2 of the condominium. Renda Millsap (“Millsap”) owns Unit 1. Millsap and Docanto are the trustees of 16 Magazine Street Condominium Trust (“Trust”). the condominium’s organization of unit owners. On March 31, 2008, after hearing closing arguments in this case, the first phase of which was tried on October 12, 2007 and December 3, 2007, I delivered findings and rulings from the bench, which, as transcribed by the court reporter and filed, constitute my decision following this first round of trial (“March 31 Decision”). I incorporate fully into this decision today the procedural history, findings of fact, and rulings of law set out in the March 31 Decision.

As I found and ruled in the March 31 Decision, well before the work on the 16 Magazine Street condominium project commenced, the Brandaos acquired title by adverse possession (to the extent they did not already possess record title), to that portion of land to the east of their driveway, up to the line of the long-existing chain link fence. The evidence amply supported my finding that the Brandaos’ occupation and long-standing use of their improved land, conducted in all respects in the manner required to establish title by adverse possession, extended fully to the line of the fence which ran between their 28 Dunmore Street holding and the land of the defendants at 16 Magazine Street. That fence, which delineates the dividing line of the parties’ titles, stood intact until displaced by the defendant Docanto, or others acting on his behalf, in connection with his building project. I found that the dividing fence was deliberately pushed out and then moved, to accommodate the placement of the foundation and the building which Docanto constructed as part of his condominium project, and that Docanto then replaced the former fence with a new one, in a location different than had existed. The new fence put in by Docanto intruded onto the plaintiffs’ holding.

The March 31 Decision also said that “[t]here is . . . more than enough in the evidence properly before me to come to a finding about the course and location of the displaced chain link fence. From all the evidence, including, in part, the helpful photos taken while the fence still stood, I can determine where the line of this fence ran.” Decision Tr. 70:8-14. The fence ran from the post which is now the “street side terminus of the new fence” at Dunmore Street, and ended, at the rear of the properties, at the “fencepost still standing, . . . to the east and right” of the utility pole at the northernmost corner of 16 Magazine Street.

At the time of the March 31 Decision, I was unable to determine the extent to which the “left rear corner of the porch and the building on the defendants’ condominium property cross the line of the old fence.” As a result, I directed the parties to have their surveyors “shoot the line,” between the two designated termini of the former fence which established the limit of the Brandaos’ ownership, starting from the street, at the location determined in the March 31 Decision, and ending at the galvanized fencepost to the east of the utility pole (as shown in the photograph, among others, that is Exhibit 9B). See Decision Tr. 73:21-74:11. The docket reflects the following orders, “The parties are to collaborate, through counsel, to have survey or surveys performed locating the line of adverse possession on the ground, as determined by the court in its findings and rulings[.]” Based on the submissions, the case would either be set for further evidentiary hearing, or proceed to judgment.

Plaintiffs filed, on June 24, 2008, along with their supplemental briefing, a plan titled “Property Line Plan, 28 Dunmore Street, Boston (Roxbury), Mass., Surveyed for Miguel Brandao” prepared by Design Consultants, Inc. and dated May 23, 2008. Plaintiffs requested that the court order removal of the encroachments, “and/or order Defendants to pay damages in a sum no less than $200,000.00, including legal fees and costs.” On June 23, 2008, Docanto and the condominium trustees made their filings. Included is a plan titled “Plan of Land in Boston, MA, Between 16 Magazine Street & 24 Dunmore Street, Prepared for Driscoll Docanto” by the Decelle Group. Millsap also filed on June 23, 2008 her supplemental brief, and adopted this Decelle Plan, so-called, filed by her codefendants.

Shortly after receiving the supplemental filings, the court scheduled a status conference for July 17, 2008, during which counsel for Docanto orally moved to reopen the evidentiary record from the original 2007 trial, because Docanto represented that his contractor, Vargas DaSilveira, recently had discovered a series of photographs that showed 16 Magazine Street during various stages of the construction project, and which Docanto represented were not available during the 2007 trial. I held an evidentiary hearing on the motion to reopen the record on December 18, 2008, and I allowed the record to be reopened to accept what became Exhibit 17 (fifteen photographs offered by Docanto) and Exhibit 18 (eleven photographs offered by plaintiffs), along with all associated testimony. Counsel were asked to submit memoranda on whether, and if so, in what respects, I should revise the findings and rulings contained in the March 31 Decision in light of the newly accepted evidence.

On January 21, 2009, Millsap and Docanto filed their supplemental memoranda, and on January 23, 2009, the plaintiffs filed theirs. The defendants argued that the new photographs show that at least portions of the original fence remained after the foundation for 16 Magazine Street was poured, and that this evidence should cause the court to depart from its March 31, 2008 finding that the original fence ran “essentially in a straight line.” The new photographs, argued the defendants, show that the original fence and building both existed at the same time, at least briefly, and require the inference that the original fence curved, or bowed out, to accommodate the new building at 16 Magazine Street. On March 30, 2009, the court issued an Order Denying Motion to Alter Findings and Rulings and Scheduling Further Evidentiary Hearing, which explained that the new Exhibits 17 and 18 depicted the old fence in various states of removal, disassembly, and reassembly but that the record, as expanded, did not contain any credible evidence showing the original fence in its undisturbed state alongside the condominium building, because the long-standing fence clearly was disturbed by (and only starting with the commencement of) construction. All parties were asked to appear June 11, 2009 for a further evidentiary hearing to determine the extent of the encroachment and on remedy. Docanto filed a motion to reconsider on April 16, 2009, which was denied on April 28, 2009.

On June 11, 2009, this case came on for an evidentiary hearing to determine the extent of the encroachment, and the remedy the court ought impose. Eight witnesses testified: Richard Lambert, Bryan Slack, Nicholas Davos, Miguel Brandao, James Decelle, Driscoll Docanto, and Renda Millsap. Karen Smith, previously sworn, continued to transcribe the testimony. On August 28, 2009, Millsap filed a Post-Hearing Brief on the Issue of Appropriate Remedy. Docanto filed a Memorandum on Damages and Proposed Findings on August 31, 2009. On September 1, 2009, the plaintiffs filed their posthearing brief. The evidentiary hearing reconvened on September 16, 2009 for closing arguments, and the issues were taken under advisement. I now decide the remaining open matters, and direct entry of judgment in this case.

Additional Findings of Fact

After hearing and weighing all the evidence, I make the following findings of fact, in addition to those previously found by me in this matter:

1. The Cost and Effect of Required Removal of Encroachments.

The boundary line plan created by Design Consultants shows a total encroachment of 199 square feet. The boundary line plan created by the Decelle Group shows the encroachment to be 188 square feet. The difference is entirely the result of the two surveyors using different fenceposts at the street side of the property as their respective starting points.

The condominium building erected by Doconto on the 16 Magazine Street site, a portion of which encroaches onto the Brandaos’ holding, is a modern, valuable, two-unit residential condominium structure, with two full stories of living space, and an attic as well, above-ground, devoted to dwelling purposes; below-grade there is another level of habitable and improved space.

The defendants presented testimony of a builder and construction consultant, Richard Lambert, which I generally credit. He testified to three approaches to removing the encroachment, and I accept as well-founded his evidence on this. There is no expedient, relatively inexpensive and practical way to remove the encroachments on the Brandao land, given the nature, function, and location of the offending improvements; some of them more than two stories high (with an additional level, including foundation and habitable space below-ground). The architecture and structural elements of the building do not lend themselves to a simple “slicing off” of only the encroaching elements of the building, although a more involved methodology along this line does seem to be a reasonable prospect.

As to Mr. Lambert’s first possible method of eliminating the encroachment, I find that the cost of demolishing the existing building, and reconstructing it on a different location on the lot, would be around $436,000.00. This figure includes reusing the architectural design work and drawings from the original construction, and realizes some savings from salvaging certain materials. This “tear-down” effort would take about seven months to accomplish, once work begins. As with all of Mr. Lambert’s estimates, he does not account for, either in time or money, the additional steps needed to address zoning and permitting issues, and a variety of other so-called “soft” costs.

The second scenario to which Mr. Lambert testified would involve lifting the building, creating a new foundation elsewhere on the lot (to eliminate the encroachment), and placing the existing building on the new foundation. I credit Mr. Lambert’s estimation of $230,000.00 as the cost for proceeding in this manner, and about five months as the time frame for this project, again measured from the start of construction work.

Finally, I find that the cost of removing the encroaching portion of the building–leaving the building otherwise as it currently sits– would be in the approximate range of $120,000.00. This approach would involve literally removing those portions of the foundation, exterior walls, and roof that encroach, reconstituting the remaining building, and reconfiguring its components; proceeding this way would result in a loss of approximately forty square feet of floor space from each of the three levels on the condominium building. This way of addressing the encroachments would require about three months of actual construction work. Mr. Lambert testified credibly that this scenario is most prone to unexpected difficulties arising during the course of the renovation.

I find that these estimates are generally accurate and reliable, though of course subject to variation if and when the work later is more comprehensively planned, engineered, permitted, and carried out. These findings as to the cost, nature, and duration of remedial work to abate the encroachments are, for all practical purposes, the same whether the encroachments to be removed are measured using the plaintiffs’ or the defendants’ competing plans. The differences between the two are not for this purpose of great magnitude. I now resolve the question of the discrepancies between the two plans.

2. Extent of the Encroachment

The March 31 Decision stated that there was “no dispute about the end of the [long-standing previous] fence at Dunmore and where Dunmore and the Magazine Streets come together and the property of the plaintiffs and the defendants come together at the street line. For all intents and purposes, the start of the fence is the same location as the street side terminus of the new fence which Docanto installed.” My review of the two plans submitted in June, 2008, however, showed me that the parties placed the location of the starting point of the former fence line (and thus the starting point, at the street, of the line of plaintiffs’ ownership established following trial) at different locations.

Plaintiffs’ surveyors, Design Consultants, used as their starting point the center of a vinyl fencepost, roughly four inches square, which is the terminus, at the end nearest to the Brandao house, of the white vinyl-clad picket style fence installed by Docanto as part of the rebuilding project at 16 Magazine Street. This white vinyl clad fence runs along the line of the street, roughly parallel to the street, in front of the new condominium building built by Docanto. Trial Exhibit 9C clearly shows the vinyl fencepost standing next to the old fencepost (“Old Fencepost”) which was the southeastern terminus of the chainlink fence that ran in front of the Brandao holding along, and roughly parallel to, Dunmore Street. The Old Fencepost is taller than the fenceposts of the fence, also visible in the admitted photographs, installed by Docanto which support chainlink along the line dividing the lands of the parties. The Old Fencepost lacks a post-cap--indeed it appears to have an unfinished edge at the top. Finally, it is recognizable because the top four inches or so are noticeably crooked. The Old Fencepost appears prominently in the photographs which are Exhibits 9A, 9C, 18-1, 18-9, 18-11, 125A, and 125C. The Decelle Group used as their starting point the new galvanized fencepost (also placed by Docanto) which is nearest the Old Fencepost. This new galvanized fencepost is the terminus, nearest the street, of the new chainlink fence Docanto installed running from the street to the rear of the lots.

The March 31 Decision was clear in its instruction that the starting point was to be the “street side terminus of the new fence which Docanto installed.” The fence referred to was the new fence installed by Docanto that starts at the street and runs away from it to the rear of the lots, oriented parallel to the disputed boundary line between the parties’ parcels. That is the only fence which can be said to have a “street side terminus.” The white vinyl fence, although also installed by Docanto, runs alongside and parallel to Magazine Street. Its “terminus” near the boundary between Docanto and Brandao is not a “street side terminus” because the whole fence runs along the street and is “street side.”

Nothing in the evidence demonstrates to me that I ought to revisit the determination made March 31, 2008, and now set the boundary line as originating at the location of the white vinyl fencepost. Specifically, the testimony at the June 11, 2009 evidentiary hearing of Bryan Slack, who prepared the Design Consultants plan, does not convince me that the bound should be elsewhere than as stated in the March 31 Decision. Mr. Slack conceded as much on cross-examination. See Evd. Hrg. Tr. 84:16-85:1 (June 11, 2009).

Moreover, nothing in the photographic evidence convinces me that the white vinyl fencepost better serves to locate the terminus of the old fence than the new galvanized post installed by Docanto--the streetmost piece of the new chainlink fence running from the street to the rear of the properties. In particular, Exhibits 9A and 18-1 do not support the view plaintiffs take on this. These photos are inconclusive as to the relative locations of the Old Fencepost and the street side terminus of the old fence, and do not support the inference that the street side terminus of the old fence was to the southeast of the Old Fencepost (or next to it when viewed from the street) rather than to the northeast (or behind the Old Fencepost when viewed from the street). To the extent it was the plaintiffs’ burden to demonstrate that the precise location of the street side terminus is other than as decided by the court on March 31, 2008, they have not carried that burden. It follows that the plan submitted by defendants, prepared by Decelle Group, Exhibit 126, is the correct depiction of the line of the former fence first altered, and then removed, by Docanto. This line, as I have found, marks the limit of the Brandaos’ occupation, the area which the court has concluded the Brandaos owned at the time the Docanto building project got underway.

For the reasons set forth above, I find the total area of the encroachment to be 188 square feet, which is the triangular area created between the location of the chainlink fence as it stands today, and the line on which the old, displaced chainlink fence once stood. I find that the line of ownership of the plaintiffs established by their adverse possession up to the line of the former long-standing fence, is as shown on the plan prepared by Decelle Group submitted June 23, 2008, the plan which came into evidence as Exhibit 126.

Within this 188 square feet, the attached porches and the associated stairs used to reach them make up a twenty-one (21) square foot area of encroachment, and the multi-story residential building itself constitutes a fourteen (14) square foot encroachment. The building encroachment comprises a triangular area. The building’s corner closest to the street, the southwest corner of the building, does not cross over the property line between the parties, as established in this litigation. That corner lies 0.49 feet on the defendants’ side of the established property line. As one heads further along the established property line away from the street, towards the rear of the properties, the encroachment begins. The point where the new building first touches the established property line lies about ten feet away from the starting point of that line at the street. As one proceeds further into the property, heading down the established property line, the width of the building encroachment which lies over the line increases, to a maximum of 1.1 feet (13.2 inches), at the rear, northwesterly, corner of the building. This point of maximum building encroachment lies about 29 feet beyond the point where the building first starts to encroach, and about 39 feet from the front, southwest, corner of the structure nearest the street.

3. Remedy

Having determined the extent of the encroachment by reference to Exhibit 126, my task now is to determine the appropriate remedy. In Massachusetts, the case law is clear that “in the majority of circumstances where there is an encroachment, the landowner is entitled to an order of removal.” Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 227 (1999), further appellate review denied, 429 Mass. 1105 (1999). The entitlement to injunctive relief exists even when “the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered.” Peters v. Archambault, 361 Mass. 91 , 92 (1972). This rule was affirmed by the Supreme Judicial Court in Goulding v. Cook, 422 Mass. 276 (1996), which held that although “property rights are not absolute, . . . except in ‘exceptional’ cases,” the court will draw a line and will not permit “permanent physical occupations amounting to a transfer of a traditional estate in land.” 422 Mass. at 277-78. In these “exceptional” cases, “courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages.” Capodilupo v. Vozzella, 46 Mass. App. Ct. at 226 (quoting Goulding v. Cook, 422 Mass. 276 , 277 at n. 3 (1996)). Whether an encroachment is entitled to “equitable exception from the standard rule” will turn on whether the encroachments are “truly minimal.” See Feinzig v. Flicksman, 42 Mass. App. Ct. 113 , 117 (1997) (“Goulding v. Cook . . . reset the boundaries of encroachments on land that will be tolerated for equitable reasons to those which are ‘truly minimal.’”). “The court may also consider whether the cost of removing the encroachment is greatly disproportionate to the benefit to the plaintiff from removing it[.]” Capodilupo v. Vozzella, 46 Mass. App. Ct. at 227 (citing Ottavia v Savarese, 338 Mass. 330 , 336 (1959)).

Capodilupo is one of the “exceptional cases” where an appellate court held an encroachment to be truly de minimis. 46 Mass. App. Ct. 224 . In Capodilupo, a building in Boston’s North End encroached at most 4.8 inches onto the abutter’s registered land, totaling about seven square feet. The Appeals Court overturned the decision of a Land Court judge who, after trial, ordered the encroachment removed. The Capodilupo court reasoned that a court may engage in a “balancing of equities after due consideration of all pertinent facts” when considering whether “a case comes within a particular exception.” Capodilupo v. Vozzella, 46 Mass. App. Ct. at 227. In ruling that the encroachment was de minimis, the Appeals Court relied on the fact that the area encroached upon was a “small open courtyard which the plaintiff uses to store trash,” that the encroachment did not deny the plaintiff “the beneficial use of his land,” that removal would “imperil the stability of [defendant’s] building,” that the encroachment was “spatially inconsequential,” and that the encroachment was “neither intentional nor the result of negligent construction.” 46 Mass. App. Ct. at 227.

Here, the structure at 16 Magazine Street occupies fourteen square feet of property owned by the Brandaos, which is twice the encroachment in Capodilupo, on a lot roughly half the size. The Brandao parcel is 6,711 square feet, the plaintiff’s lot in Capodilupo was 11,878 square feet. 46 Mass. App. Ct. at 227. The encroachment involved in the case before me places a portion of a two and a half story building onto the defendants’ land. The width of the imposition of this substantial structure is, at its maximum, a bit over thirteen inches, tapering, over a line of some twenty-nine feet in length, down to no encroachment.

The evidence is not direct on the point, but does give me enough basis to find by reasonable inference that, of the some 29 feet along the property line where the building does encroach, for at least ten, and likely about fifteen feet of that length, the encroachment is half a foot or more over the line. For the eight to ten feet of the building encroachment most to the rear, the width of the building over the line is very close to, or over, a foot. Taking into account the mass, height, and solidity of the building, which I viewed at the locus, and having in mind the physical dominance of the close to fifteen foot length of the building which intrudes by more than just a few inches into the plaintiffs’ land, I am unable to find that this amount of encroachment is “spatially inconsequential.”

While the area of the Brandaos’ land which is occupied by the defendants’ encroaching building is in a location where it is unlikely that the Brandaos ever would build their own structure (given the proximity to the lot line, the zoning constraints applicable, etc.) it most often is the case that encroachments over lot lines invade the least buildable parts of the land. There is a serious impact, nevertheless, on the land which is caused by the magnitude of the encroaching building. Thus, this is a case where the substantial nature of the encroachment (with the corresponding high cost of removal) takes away the possibility of characterizing the encroachment as de minimis. There is often an inverse relationship between the ease of removal of an encroachment, and the degree of intrusion which the encroachment produces. It is far easier to remove a slight, low landscaped flower bed, which may produce very little intrusion, than to tear down or rebuild a multi-story building, but there is no question that the building produces far greater impact upon, and harm to, the plaintiff’s land. [Note 1]

The Brandaos did not offer any evidence as to the cost of removing the encroachment. The defendants offered three scenarios: (1) a total demolition and reconstruction, (2) lifting and relocating the structure, and (3) a reconstruction to remove only the encroaching portion of the building. The three remedies were estimated to cost $436,000, $230,000, and $120,000 respectively. The cost of removing the encroachment is considerable, a fact largely without dispute among the parties. The Brandaos, for their part, have offered little, if any, evidence to quantify, in monetary terms, the burden they have suffered. I do not find, for example, that the presence of the encroachment materially will interfere with the overall use by the Brandaos of their land. They will still be able to occupy and enjoy the existing residential structure on their property, and to use the driveway they have to its full width. I find that the encroachments have interfered to some material degree with the garden and gardening activities maintained by the Brandaos for many years, but, even with the encroachments in place, there remains a sufficient space for the Brandaos to garden in the rear and side of their lot.

Nevertheless, the Brandaos are entitled to injunction even when the “cost of removal is substantial in comparison to any injury suffered.” Peters v. Archambault, 361 Mass. at 92; see also Feinzig v. Ficksman, 42 Mass. App. Ct. at 118 (“That removal of the encroachments by the [defendants] saddles them with considerable expense, and that the encroachments demonstrably . . . had minor impact on the enjoyment of the [plaintiffs’] parcel is . . . without consequence.”).

A court may consider, as one factor, “whether the encroachment is intentional or the result of negligent construction” when deciding whether to apply the equitable exception to the rule that encroachments are to be removed. Capodilupo, 46 Mass. App. Ct. at 227. Driscoll Docanto’s plans to erect the building at 16 Magazine Street called for the corner of the building to be within one foot of the “property line.” [Note 2] There is testimony that the Decelle Group advised Docanto and his contractors as to where the property line was on the ground, however, the location of that line in relation to the then-existing fence is not established by the evidence. The inescapable conclusion is that Docanto and those working for him erected the building near or along what he believed to be the record property line, which was substantially different than the line of the old fence. The only way, physically, to accomplish this was to remove the existing fence and place the building where that fence once stood. While Docanto and his contractor, Vargas DaSilveira, insist that the old fence was not removed until after the foundation at 16 Magazine Street was poured, the other evidence in this case contradicts them.

One explanation, the explanation I believe, for how the building came to be situated over the line where the fence once ran is that the fence was altered, pushed out, and removed before the building went in. Docanto argues that the photographs introduced at the December 18, 2008 evidentiary hearing (Exhibits 17 and 18) bear out his version of events because they show what appears to be the old fence, standing, alongside the new building. However, exhibits 17 and 18 clearly show that the fence was severely disturbed when the photographs were taken. Exhibit 18-4, for example, shows that substantial portions of the old fence are missing entirely, and orange safety netting bridges the gap between what appears to be old, rusted fence, and a section of new, and newly installed chain link. The only inference I am able to draw from all the evidence is that the long-standing fence was repositioned, and relocated, in segments during the construction of 16 Magazine Street. I stop short of making a finding that Docanto intentionally located his building on the land of Brandao, intending to appropriate the Brandaos’ land to accomplish his goal of building an ambitiously large multi-family dwelling on a narrow, constrained lot. However, I do find that Docanto and his contractors and other agents paid no attention to the open and obvious fact that the Brandao family was using and exclusively occupying the land up to the fence; Docanto or his agents intentionally relocated or removed the fence, and erected the building where the fence once stood. Docanto had had a less than cordial relationship with these neighbors, who had raised objection to his building plans, and he was not solicitous of their concerns and their long-standing use of their land as he built the large new building on a decidedly small lot in this densely populated part of Boston. To accomplish his end, Docanto literally “pushed the envelope,” first thrusting the fence out and away from the new building, and then, in pieces, removing the fence from its historic alignment, which unfortunately for Docanto, happened to lie where his new building was going. Docanto is not now entitled to an equitable exception to the rule that he must remove the encroachment caused by his careless (indeed, reckless) conduct, which disregarded the obvious longstanding line of occupation by his neighbors.

Millsap argues that instead of ordering removal, I should craft a “substitutional remedy” like that described in the Restatement (Second) of Torts, § 941, comment c, para. 5, which reads in pertinent part:

It is also possible in some instances to protect the plaintiff’s interests adequately, while still avoiding the hardship that the requested injunction would impose on the defendant, by granting substitutional relief to the plaintiff. For example, when the plaintiff complains of an interference with his easement of access across the defendant’s land, the court may allow the defendant to provide access by another route that serves plaintiff’s purposes sufficiently but relieves the defendant of the loss he would suffer from having to remove an obstruction from the original easement.

Millsap cites two cases, Gray v. Howell, 292 Mass. 400 (1935), and Boynton v. Buchanan, 12 Mass. App. Ct. 822 (1981), in which the trial court was upheld when it crafted a remedy other than mandatory injunction requiring removal. In Gray v. Howell, which dealt with an encroachment upon a right-of-way, the trial judge allowed the defendant encroacher to provide a new right-of-way to the plaintiff rather than remove the structure unlawfully present on the existing easement area. In Boynton v. Buchanan, a justice of the Land Court offered the plaintiffs a choice: restoration of the prior-existing right-of-way (which the defendants disturbed during construction of a subdivision), or acceptance of an easement for access over the newly created subdivision roads. I am not convinced of the continuing viability of either of these cited cases after Goulding v. Cook.

Comparing the cases of Boynton and Feinzig is a useful exercise because the two decisions, both penned by Judge Kass, reach opposite conclusions. In Boynton, the Appeals Court saw nothing wrong with the Land Court’s refusal to impose a mandatory injunction [Note 3] even when the defendant’s trespass rendered the plaintiff’s access easement impassable. In Feinzig, the Appeals Court concluded that a Superior Court judge erred in declining to order removal of a retaining wall that had only “minor impact” on the plaintiff’s land. 42 Mass. App. Ct. at 119. What changed in the fifteen years between these two decisions was that “Goulding v. Cook . . . reset the boundaries of encroachments on land that will be tolerated for equitable reasons to those which are ‘truly minimal.’” 42 Mass. App. Ct. at 117. I conclude, as I must under the law of the Commonwealth, that the remedies short of injunction, which are suggested in section 941 of the Restatement (Second) of Torts, are simply not available except in cases where the encroachment is “truly minimal,” something I have found and ruled does not exist in the dispute now before me.

I also observe that the substitutional remedies which the defendants ask the court to provide have, to the extent they have been granted at all, been entertained only in the context of encroachments onto an easement area, and not where the infringed locus is owned in fee by the plaintiff. Where the right adversely affected by an encroachment is but a right to pass, the law is more lenient. This is so because the right of an easement holder needs to coexist with that of the burdened fee owner, who is privileged to make use of his or her fee in any manner not inconsistent with the reasonable exercise of the easement. The law of the Commonwealth has developed to recognize that easements, even those established by grant and fixed in location, may be judicially altered and relocated to another route providing the functionally equivalent benefit to the easement holder. See, MPM Builders, LLC v. Dwyer, 442 Mass. 87 (2004). This is because the easement, a lesser estate, exists to accomplish definite purposes--access, passage, etc.--and the accomplishment of those purposes may, in many instances, be assured by a court even though the location of the easement may end up being different than the parties initially specified.

However, where the estate encroached upon is the fee, where the full ownership of the land is affected by the permanent presence of another’s building upon it, the opportunity for a court to resolve the problem by deftly moving around the parties’ estates, relocating the lines of ownership on the ground, even in an equal or generous way, is not apparent in the decisional law. To do so might appeal greatly to the court’s equitable instinct. It might avoid a costly, protracted remedy. It might seem fair to order the owner encroached upon to take either some of the defendant’s land, or money, or both, instead of ordering removal of the encroachment. But doing so would violate the fundamental principle that courts “draw the line at permanent physical occupations amounting to a transfer of a traditional estate in land...” a solution which gives sanction to unlawful “private eminent domain.” Goulding v. Cook, 422 Mass. at 277-278.

The case before me presents starkly this issue of “private eminent domain.” Here, Docanto, pursuing the construction of a sizable new building on a narrow lot, was well aware of the close proximity his new structure would have to the land long owned and occupied by the Brandaos. Indeed, he needed permitting dispensations to build so close to the line. He and his contractors, when they put in the new improvements, invaded the line clearly marked by the Brandaos’ long-standing fence, which they pushed away, and then replaced with a new fence in a new location inside the Brandao land. Were the court to fail to order removal of the encroachments, perhaps by instead requiring payment of monetary damages, the court would effectively have facilitated an act of private eminent domain by sanctioning the forced sale of the encroached upon land.

I am greatly aware of the concern set forth in Restatement (Second) of Torts, § 941, comment c, that when the cost of removing an encroachment substantially outweighs the injury caused by the encroachment, as is the case here, and an injunction issues, the defendant’s “bargaining position would be so bad that the plaintiff might extract” a settlement so large that “the damages that the plaintiff could recover would be trifling in comparison.” Restatement (Second) of Torts, § 941, comment c. In Goulding v. Cook, the Supreme Judicial Court said, “[t]he Appeals Court’s disposition [leaving the encroachment in place in exchange for payment] may be seen as moved by its revulsion at the thought that the [plaintiffs] should be able to extract so large a rent for so minor an accommodation.” 422 Mass. at 279. Nonetheless, the Supreme Judicial Court ordered the encroachment removed. Because there is no basis, on the facts as I have found them, to rule that the defendants’ improvements’ encroachment onto the plaintiffs’ land is exceptional and truly minimal, I am obliged to direct entry of a judgment which will require removal of the encroachments across the property line, as established in this litigation.

There is a marked difference in the responsibilities of defendant Docanto and defendant Millsap for what happened here. No one in this case takes the position that Millsap had any involvement in the development and construction of the building in which she and her family later took up residence. She came to the property after construction was complete, the new fences were in place, and without there being any real clue that the long-standing line of occupation by the Brandaos had been unilaterally altered by the building of the new structure.

One factor, though not a dispositive one, a court considers in deciding whether a case is a truly exceptional one--where a permanent encroachment ought be allowed to remain-- is whether the encroachment is the product of intentional appropriation or negligent construction, on the one hand, or happens innocently, on the other. If only Millsap were the defendant here, I would conclude that she was free of culpability in the creation of the encroachment by either intention or reckless disregard of the facts on the ground. I would take her blamelessness into account in deciding whether the court needed to order her to take away the encroachments. It is not at all clear, however, that the determination would be that she would not need to remove the encroachments, given their substantial impact on the plaintiffs’ lot in this closely-confined neighborhood. There is no rule that a subsequent purchaser of a structure which encroaches onto another’s land is excused from having to remove the encroachment just because she is unaware, at the time she buys, that the encroachment exists. Such a rule would unfairly limit relief to an equally innocent owner burdened by the encroachment, and would promote fast sales of encroaching structures with no disclosure by the seller, who knew he had built the encroachment, and no investigation by the buyer, who would be better off not knowing.

Here, however, the situation is even less crisply presented. I deal in this case with a condominium structure, in which the unit buyer of one unit, who had no role in the creation of the encroachment, is a co-owner of the common elements of the condominium with the other unit owner, the developer who built the building and played a significant part in the encroachment. Two owners live and own in the same building. I cannot excuse Millsap from having to remove the encroachment without extending the same dispensation to Docanto. Leniency for Millsap, under these circumstances, would produce a windfall for Docanto.

I am unconvinced that, even with an entirely innocent complement of owners, I could permit the encroachment involved in this case to remain without violating the principles profoundly pronounced in Goulding v. Cook. I am convinced that I cannot withhold an injunction requiring removal where to do so would relieve Docanto of that obligation. What I can and will do, however, is direct that, as between the defendants, the responsibility for removing the encroachments, including the shouldering of the full cost of the work, and of the actual, direct costs Millsap will sustain as a consequence, will fall on Docanto. While all defendants will by the judgment that enters in this case be required to see to the removal of the encroachments for the plaintiffs’ benefit, the financial burden of doing so is to rest on Docanto individually.

I also will not decide for the defendants the manner in which they must remove the encroachments for the Brandaos’ side of the line. The evidence shows that there are a minimum of three methods open to accomplish the removal, each with differing time frames, costs, and risks. The plaintiffs have no right to command one solution over another, provided that the end of the work brings about the cessation of the encroachment on their land. I will leave the selection of the method to carry out the work to the defendants, expecting them to cooperate in good faith with each other to make that determination. To the extent the court’s optimism in this regard proves not to be justified, the defendants may apply to this court for alteration of the judgment in a manner which settles their disagreement. I also award but nominal damages to plaintiffs for the occupation of their land by the encroachments during the time preceding their removal, finding no basis in the evidence for any larger amount.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: April 12, 2010