McGowan v. Koutras

6 R.I. Dec. 130

• Court: Superior Court of Rhode Island
• Decided: April 17, 1930
• Docket: Eq. No. 9507
• Status: Published

Opinion

BLODGETT, P. J.

Heard upon bill, answer and proof.

Bill brought to have á retaining wall between premises of complainant and respondent declared a continuing nuisance.

The wall in question was constructed by respondent in 1924 and extends 117.49 feet in a westerly direction. Respondent has filled up that part of his land on the south side of the wall and placed sheds and garages upon the top, said structures being placed close to the division line between the contiguous lots of complainant and respondent. On the easterly end of said wall same, by testimony of a civil engineer, encroaches upon land of complainant seven inches and at its west end four feet and three inches. Upon the record there is no evidence to contradict these figures

The respondent is evidently a trespasser.

The only defense on respondent’s part is that of laches. There is no evidence that at the time of construction there was any agreement between the holders of the title to said respective parcels of land as to the location of a division line. There was much contradictory evidence as to proper construction of the wall which, in - the. opinion of the Court, is of no relevance as to the pending issue.

The present bill was brought in April, 1929, five years after the wall was built. The lapse of time, five years, is insufficient for respondent to obtain title by adverse possession, or to establish a charge of laches upon complainant. The land of complainant on the entire north side of said wall is not built upon and is apparently not damaged by -the construction of said wall.

Complainant is entitled to a decree for the removal of said wall from her premises.

Such decree may be entered.