Dolske v. Gormley

In Dolske v. Gormley (1962) 58 Cal. 2d 513 25 Cal. Rptr. 270, 375 P.2d 174, the defendant built a fence along the boundary with the plaintiff's property. The plaintiff contended that the fence interfered with her easement for a driveway over the defendant's property. The defendant cross-complained for an injunction to make the plaintiff remove certain encroachments on the defendant's property--a support pillar for a front porch, the eaves of the plaintiff's roof, and a gas meter and pipes. The trial court entered judgment for the defendant on both actions, ordering the plaintiff to remove her encroachments. On appeal, the Supreme Court held it was error to order the removal instead of awarding money damages "where said encroachments are causing little or nominal damage . . . and the cost of their removal would be proportionately great . . . . And while no direct evidence is contained in the record as to the probable expense and inconvenience to Mrs. Dolske of the removal of the encroachments, this court may take judicial notice of the fact that removal of the porch pillar, gas pipes and meters, roof eaves and other structures . . . would involve considerable expense as well as disfigurement of the Dolske house, which might well be characterized as 'irreparable injury' to cross-defendant." ( Dolske, supra, 58 Cal. 2d at p. 520, italics added.) In short, defendant's home was built three inches from plaintiff's property line. Gas meters and pipes, eaves along one side of the home, and a pillar supporting a large porch encroached onto plaintiff's property. The trial court granted an injunction requiring the defendant to remove all encroachments. The California Supreme Court took judicial notice that removal of the encroachments would involve considerable expense as well as disfigurement of the house. The court stated the plaintiff will not suffer irreparable injury from allowing the encroachments to remain. The court concluded the trial court abused its discretion in ordering the removal of the encroachments.