Generally; Action for Damages

In cases of encroachment, the landowner can base the cause of action either on ground of continuing trespass or on the basis of nuisance.  Encroachment upon land by an adjoining landowner gives the person whose land has been encroached upon the right to recover damages from the other.  However, no damages are usually awarded in cases where it is shown that the plaintiff had used and received substantial benefit from the encroachment in connection with his or her own building.[i]

In the case of Sokel v. Nickoli[ii], there was an action by landowners for mandatory injunction requiring adjoining landowners to remove alleged encroachment.  The reviewing court in this case ordered the encroachment removed and remanded case for determination of damages.  The Supreme Court in this case held that where landowners could not have constructed proposed house and garage on tract regardless of whether adjoining landowner had encroached, landowner could not recover amount of increase in construction cost of proposed home and garage from time of encroachment to time of removal thereof, and evidence sustained findings of $880.33 damages.  However the case was remanded by the Supreme Court since trial court refused to tax costs upon petition by landowners after appeal from judgment for damages.

[i] Esnard v. Cangelosi, 200 La. 703

[ii] 356 Mich. 460, 97 N.W.2d 1

Inside Generally; Action for Damages