Hoffman v. Bob Law, Inc.

Supreme Court of South Dakota · 2016 · Property

888 N.W.2d 569 (2016)

Updated July 23, 2026

PropertyEncroachmentsTrespassInjunctive ReliefEquitable Easementsencroachmentmandatory injunctionequitable easement

Facts

Lot 3 and adjoining Lot 4 were originally owned by Bob Law, Inc., which excavated a basement and roughed in a septic system while still owning Lot 3; due to a mistaken understanding of the boundary line, the septic system and later improvements ended up encroaching onto Lot 4. After Lot 3 was conveyed to DeJager, DeJager installed a retaining wall, concrete pad, lamp pole, and driveway, some portions of which also encroached on Lot 4. Hoffman later bought Lot 3 without obtaining a survey, and shortly after closing Law informed him of the encroachments. A survey showed that the septic tank, propane tank, concrete pad, lamp pole, and portions of the retaining wall and driveway encroached on a small part of Lot 4.

Issue

When fixtures and improvements on one parcel encroach onto an adjoining parcel, under what circumstances may a court deny a mandatory injunction requiring removal and instead allow the encroachment to remain while awarding only nominal damages? More specifically, did the circuit court properly deny removal of the septic system and the other encroachments based on the equities?

Rule

A mandatory injunction to remove an encroachment is statutorily authorized when pecuniary compensation would not afford adequate relief, and in encroachment cases money damages often are inadequate because land is unique and continued encroachment threatens adverse possession. But authorization does not mean entitlement: the court must consider whether the party to be enjoined caused the damage, whether irreparable harm would result without an injunction because there is no adequate legal remedy, whether the encroacher acted in bad faith or by innocent mistake, and, most importantly in encroachment cases, whether the hardship of removal is disproportionate to the benefit to the landowner. If a court denies removal after balancing equities, it may allow the encroachment to remain as a temporary equitable easement, and nominal damages are proper where actual damages are not proved.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Boise, Nolan Pierce built a detached workshop that extends two feet onto Maya Sen's adjoining lot. Maya sues for trespass and seeks a mandatory injunction, while Nolan argues the court should deny any injunction because he is willing to pay Maya the fair market value of the occupied strip.

Which is the strongest response under the governing rule?

Explanation. The majority held that in encroachment cases, pecuniary compensation often does not afford adequate relief because land is unique, damages can amount to a private taking, and continued encroachment creates adverse-possession risk. Thus an injunction is authorized, even though it is not automatic.