Denial of Injunction Against Encroachment Under the Balancing the Hardships Doctrine
In Christensen v. Tucker (1952) 114 Cal. App. 2d 554, the court set forth three requirements for denial of an injunction against encroachment under the balancing the hardships doctrine doctrine:
"1. Defendant i.e., encroacher must be innocent--the encroachment must not be the result of defendant's willful act, and perhaps not the result of defendant's negligence. In this same connection the court should weigh plaintiff's conduct to ascertain if he is in any way responsible for the situation.
2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected.
3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant. But where these factors exist, the injunction should be denied . . . ." 9 (Id. at p. 563.)