On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:
On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss

wrote:



On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:



Both surveys show the line in the same place, right?



Correct.



And despite that, they

encroached on your property, right? Question: why did you not stop them?



I stopped them when they tried to put it 2 3/4" over. I showed them where

the line is. I assumed that they then did it right. Only now have I

discovered that they didn't. And the discovery was made when my fence guy

put in the side fence and it didn't line up with this fence. So we measured

to see what was going on.



Don. www.donwiss.com (e-mail link at home page bottom).





That would slightly change my prior response since you did raise the

issue with them. That said, I think you would still lose if this goes

to court. There is only the most trivial of harm to you from what's

happened and it seems like the issue with your fence could have been

easily fixed at the time it was built had the contractor cared how it

was going to line up - apparently he didn't or he would have spotted

it before putting up your fence. In this kind of civil dispute

there's a good chance the court is not going to focus on

technicalities of the law, otherwise they would order a fence moved

even if encroached even a sixteenth of an inch over the property line.

The court is more likely to look at what an equitably/fair solution

would be after hearing from all parties. If I were the judge knowing

what I know at this point I'd not be likely to order the fence moved.

But another person as judge, god only knows what someone else might

decide. I'm having a hard time picturing how/why your fence was not

able to line up with this one.

You're misinformed as to what courts and judges do. They aren't
there to figure out what is fair.
They are there to apply the rule of law. And I think you will find
plenty of case law that says you can't build something on another
person's property. 1.5" isn't much, but it's also clear why they did
it. By doing it, they got their fence around a telephone poll.
IMO, this would be a slam dunk win, and the fence would have to be
moved. To follow your reasoning, a neighbor could build his house
where it's not supposed to be, then because it's an inconvenience to
redo it, he gets away with it.