§ 137. Landowner’s Consent To Encroachment

Where the plaintiff has consented to the encroachment, a mandatory injunction to compel the removal of an encroachment by an adjoining landowner will be denied.[i]  The plaintiff’s consent may be either express or implied.[ii]  Courts have held that injunctive relief is properly denied to a plaintiff seeking the removal of fences and patios that were extended in violation of restrictions but with the full consent of the plaintiff.[iii]

[i] Dunn v. Fletcher, 266 Ala. 273, 96 So. 2d 257 (1957).

[ii] Brown v. Gessler, 191 Or. 503, 230 P.2d 541, 23 A.L.R.2d 815 (1951).

[iii] Ethan’s Glen Community Ass’n v. Kearney, 667 S.W.2d 287 (Tex. App. Houston 1st Dist. 1984).