On Monday, June 24, 2013 5:24:34 PM UTC-7, wrote:
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.

Judges do consider equity, not just the letter of the law. I've had 40 years of boundary surveys under my belt and have been retained as an expert witness over land issues. Consider the following:
300 foot long block with 12 each 25 foot wide properties. We survey the last property in the block and find that it is only 24 feet wide. We verify that the block is 300 feet in total and find that the first property is sitting on 26 feet width and everyone in between has exactly 25 feet. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the law..
Ivan Vegvary