Mancini v. Kaminski

— Judgment affirmed, with costs. Memorandum: Appellant is the owner of premises and resides at 1609 Neilson Street in Utica, New York, and respondents are his next door neighbors at 1611 Neilson Street. In May, 1976 respondents replaced a three-foot-tall chain link fence between the two properties by erecting a wooden fence approximately 50 feet in length and 6 feet tall in the same location as the removed fence. Alleging a partial encroachment thereby on his property ranging from 3 feet to .60 feet, appellant commenced an action to enjoin respondents from maintaining the new fence and to force removal of those parts that encroach upon his property. Appellant moved for summary judgment which was denied. Subsequently a settlement was arrived at when respondents agreed to move the fence a distance of two inches within their property line. In doing so they enlarged seven existing post holes and slid or moved the fence by sections on to their property. Appellant then served a supplemental complaint alleging that while the fence no longer encroached on his property respondents had filled the original seven post holes with concrete, bricks and stone, all to his damage and detriment. At the nonjury trial appellant testified that these seven holes were approximately eight feet apart with the material filling these holes being two to four inches beneath the surface. Appellant contends that because of this he has lost full use of his garden and cannot rototill his land properly; that he had to move his garden five to six feet away from the fence because it acts as a shield and deflects rain water back on his property, and that some day he may want to install his own fence and may be hampered in that regard. As to the rain water problem, appellant agreed that such water buildup occurred prior to the fence installation and such condition always existed because the entire street is on a grade, respondents’ property being above appellant’s on a higher level with a rolling bank. The only other testimony at the trial was that of the surveyor who, at appellant’s request, had surveyed the land in connection with the original fence encroachment. On January 11, 1978 he returned to the premises for the purpose of locating the seven original post hole installations which were on appellant’s land at distances of 60 hundredths of a foot to a maximum of 1.1 hundredths of a foot. The trial court pointed out that all filler material was subterranean and that in order to learn this it was necessary to dig below the ground surface. The trial court correctly granted respondents’ motion to dismiss at the end of appellant’s case (CPLR 4401). While we recognize, as did the trial court, that a mandatory injunction will sometimes lie where an underground encroachment exists (Baron v Korn, 127 NY 224; Andrews v Cohen, 163 App Div 580, mod 221 NY 148), the record fails to indicate that appellant sustained his burden of proof on the question of an actionable encroachment and that the proof presented was insignificant and inconsequential, in addition to which there was an insufficient showing of damages. All concur, except Dillon, P. J., who dissents and votes to reverse the judgment and grant a new trial, in the following memorandum.