An encroachment is an intrusion upon the property of another without consent. No person is legally entitled to construct buildings or other structures in such a fashion as to extend beyond the person’s property line and intrudes upon adjoining lands. Such a construction will be an encroachment regardless of the size of the construction.
An encroachment occurs when the buildings, structures, or improvements of one property cross over into an adjoining landowner’s property or rest on top of easements, or rights of way located within the property lines. For instance constructing the stairs on the adjoining boundary line, thereby impermissibly transgressing on the plaintiff’s property is an encroachment.[i]
If the encroaching owner refuses to remove the overhanging construction, the owner of the contiguous lot may personally remove as much of the encroachment that deprives him/ her of the complete enjoyment of his/ her land with sufficient care and can sue the encroacher for the expenses for removal. If the contiguous landowner is negligent in undertaking the removal, the person will be liable for damages.
Where roots or branches of trees located on the property of the owner extend onto the property of the adjoining land owner, the latter may cut down the branches or roots up to the line of his land.[ii] However, the adjoining owner clearly has no right to convert either the branches or the fruit to his/her own use.[iii]
The remedies available to an adjoining landowner include damages for nuisance or trespass as well as an injunction against continuation of the encroachment or to force its removal.
“Where one’s property is cast or stranded upon the land of another as a result of an act of God, such as a flood or hurricane, the owner of the property may enter upon the land where it is and recover it without being guilty of trespass.” [iv]
The possession and occupancy of the projecting structure by the encroaching person has no effect on the ownership of the soil beneath, “unless it be maintained under a claim of right for fifteen years, and so should ripen into a perpetual easement.”[v]
[i] Kelley v. Tomas, 66 Conn. App. 146 (Conn. App. Ct. 2001)
[ii] Robinson v. Clapp, 65 Conn. 365 (Conn. 1895).
[iii] Lyman v. Hale, 11 Conn. 177 (Conn. 1836).
[iv] Dalling v. Weinstein, 6 Conn. Supp. 498 (Conn. C.P. 1939).
[v] Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662 (Conn. 1903).