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Balance of Convenience or Relative Hardship

Many courts have taken the position that it is proper to consider the balance of convenience or relative hardship which would result from granting or denying the injunction, in determining whether a mandatory injunction should issue to compel an adjoining landowner to remove an encroachment.[i]  A court may decline to grant an injunction to compel an adjoining landowner to remove an encroachment where the expense and difficulty of removal would be great compared to the neighbor’s inconvenience in continuing the encroachment, or its removal would result in little benefit to the neighbor.  However, if the encroachment was in good faith, the court should weigh the circumstances so that it shall not act oppressively.[ii]  While the mere balance of convenience is not the proper test, relative hardship may properly be considered and the court should not become a party to extortion.  Where defendant’s encroachment is unintentional and slight, plaintiff’s use not affected and the damage small and fairly compensable, while the cost of removal is so great as to cause grave hardship or otherwise make its removal unconscionable, mandatory injunction may properly be denied and plaintiff relegated to compensation in damages.

[i] Dolske v. Gormley, 58 Cal. 2d 513, 25 Cal. Rptr. 270, 375 P.2d 174 (1962)

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


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