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Factors Determining Issuance of Injunction-Generally

A mandatory injunction is ordinarily issuable to compel removal of encroaching structures.  However, whether an injunction should issue for a structure encroaching on a legal estate in land depends on all the equities between the parties, and the facts and circumstances of the particular case.[i]  The trial court must balance the equities to determine the extent of the encroachment; the relative expense of removal compared to the diminishment of the encroachee’s property value; and the availability of compensation by way of damages, in cases seeking the removal of an encroachment.  Moreover, an injunction should not be issued as a matter of course to compel removal of an encroachment case without consideration of the peculiar equities of the case.[ii]

[i] Hullar v. Glider Oil Co., Inc., 219 A.D.2d 825, 631 N.Y.S.2d 971 (4th Dep’t 1995).

[ii] Golden Press, Inc. v. Rylands, 124 Colo. 122, 235 P.2d 592, 28 A.L.R.2d 672 (1951).

Inside Factors Determining Issuance of Injunction-Generally