PAUL F. PANETTA and MARY ANN PANETTA vs. ALEXANDER SCHARF.

By complaint filed with this court on November 6, 1987, and amended on July 26, 1989, the Plaintiffs, Paul F. and Mary Ann Panetta ("Plaintiffs"), seek the entry of an order directing the Defendant, Alexander Scharf ("Defendant") [Note 1], to remove so much of a retaining wall, or a "planter" as it is referred to by the Plaintiffs, as he has caused to encroach upon their property at 8 Butler Avenue in Lexington, as well as an award of damages therefor. The Plaintiffs also seek an award of damages pursuant to G.L. c. 231, §6F (1), on the ground that the claims asserted by the Defendant herein are wholly insubstantial, frivolous and not advanced in good faith.

A trial was held on July 16, 1990, at which time a stenographer was appointed by the Court to record and transcribe the testimony. Three (3) witnesses testified and three (3) exhibits, all of which are incorporated herein for purposes of any appeal, were admitted into evidence.

On all of the evidence, I find as follows:

1. The Plaintiffs are the owners of a parcel of real estate, improved with a single-family residence, located at 8 Butler Avenue in Lexington.

2. The Defendant is the owner of a parcel of real estate, improved with a single-family residence, located at 10 Butler Avenue in Lexington. This parcel abuts the easterly boundary of the Plaintiffs' property.

3. Some time in late 1986 or early 1987, the Defendant constructed a timber retaining wall along what he believed to be the westerly boundary line of his property.

4. Questioning the location of the Defendant's retaining wall, the Plaintiffs, in May of 1987, hired a registered, professional land surveyor to perform a survey of the easterly boundary line of their lot. This survey revealed an encroachment by the Defendant's retaining wall over the Plaintiffs' land (See Exhibit No. 2).

5. Following the May 1987 survey, the Defendant attempted to eliminate the encroachment by removing a certain portion of the retaining wall.

6. Some time in early 1990, the Plaintiffs hired another registered, professional land surveyor to survey the easterly boundary line of their property. At this time, the wall measured approximately thirty-six (36±) feet in length, eleven (11+) inches in height and eight (8±) inches in width. The survey, which is shown on a plan entitled "Certified Plot Plan in Lexington, Mass.", dated March 25, 1990, by Keenan Survey (Exhibit No. 1), reveals that the base of the wall runs along the Defendant's westerly boundary line, but, at one point, the top of the wall leans outward towards the Plairitiffs' land, thereby causing an encroachment of approximately 3/4 of an inch.

As a general rule of this Commonwealth, a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though such encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place. Ottavia v. Savarese, 338 Mass. 330 , 336 (1959); Peters v. Archambault, 361 Mass. 91 , 93 (1971); Franchi v. Boulger, 12 Mass. App. Ct. 376 , 379 (1981). In exceptional cases, however, courts of equity have refused to grant an injunction and left the plaintiff to his remedy of damages, such as where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable. Id. Such cases have been based on estoppel, laches or on the trivial nature of the encroachment or injury to the plaintiff. Peters at 93 n. 2. See Tramonte v. Colarusso, 256 Mass. 299 , 302 (1926); Loughlin v. Wright Machine Company, 273 Mass. 310 , 316 (1930); Triulzi v. Costa, 296 Mass. 24 , 28 (1936).

The instant facts reveal an encroachment by the Defendat's retaining wall over the Plaintiffs' property, which is small, if not de minimis. Although no evidence exists that the Plaintiffs have suffered significant, if any, damage by the "encroachment", it does appear that the Defendant may effectuate a removal of the encroaching portion of the wall with little effort (i.e., by the use of a hatchet, wood plane, jack, crowbar or similar device) and without any disproportionate cost to himself. Accordingly, I rule that the Defendant must remove the offending portion of his retaining wall from the Plaintiffs' land, within sixty (60) days from the entry of a final judgment herein, after all appeals have been resolved, and upon the written request of the Plaintiffs. The Defendant may enter upon the Plaintiffs' property as may be reasonably necessary or convenient to accomplish this end. Further, in order to forestall additional and undue litigation in a case which may be appropriately characterized as "damage without injury", the Plaintiffs must bear the expense of any damage which their property may hereafter sustain as a result of the Defendant's reasonable attempt to achieve compliance with this Decision and Judgment. In so ruling, I deny the Plaintiffs' claim for damages resulting from this minor encroachment.

The Plaintiffs have amended their complaint to include an additional count for damages pursuant to G.L. c. 231, §6F, which section provides in relevant part as follows:

Upon motion of any party in any civil litigation in which a . . . decision . . . or judgment has been made by a judge . . ., the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith (emphasis added). . . .

I find that, under the language §6F, the Plaintiffs have asserted their claim for damages prematurely, inasmuch as it is plead in their amended complaint and not brought by motion subsequent to the entry of a decision and judgment herein. Moreover, I note that §6F applies only to the claims, defenses, setoffs and counterclaims of "any party who was represented by counsel during most or all of the proceeding. . . ." Here, the Defendant was represented by counsel at only the early stages of this proceeding, specifically in the filing of an answer to the Plaintiffs' complaint. He appeared pro se throughout the remaining stages of the case. Accordingly, on the grounds that this claim for damages has been brought prematurely and is asserted against an inappropriate party under the terms of G.L. c. 231, §6F, it is hereby dismissed.

Judgment accordingly.