“Baseball is a game of inches.” Branch Rickey

Land Surveyor

And often so is construction. A recent case illustrates the point:

A Romanian Orthodox Christian Church in Elmhurst, Queens is adjacent to a construction site. Defendants were building a substantial residential apartment building next door. For construction to proceed, a retaining wall was built very close to the Church property line. The Church hired a professional surveyor who found that the steel piles encroached on the north end of the Church’s western property line by 2.5 inches and at the south end of its western property line by 3.25 inches. The survey also showed that the wood lagging encroached on the Church’s property at the north end of its western property line by 3.25 inches and at the south end of its western property line by 3.75 inches.

The Church moved by emergency order to show cause for a temporary restraining order and a preliminary injunction. The application sought to stop defendants from performing any further work on the foundation wall along the western line of the Church’s property, on or above the foundation wall, or any further work that encroached onto the Church’s property.

At the conclusion of the oral argument, the Court issued the temporary restraining order sought by the Church.

In deciding whether to grant a preliminary injunction, the Court found that, as an initial matter, it was irrelevant that a portion of the retaining wall encroached underground. A subterranean encroachment was as actionable as one above ground.

The Court recognized that encroachments of from 1½ to 3¾ inches have generally been labeled as de minimis and would not justify a request to compel removal. The Appellate Division, First Department had, nevertheless, in another case, held that a court may order the removal of an encroachment of a mere three inches under appropriate circumstances.

In the end, whether or not an encroachment is actionable requires a weighing of the relative circumstances. In this case, the Court found that the circumstances warranted the requested relief.

Here, the maximum amount of the encroachment was 3.75 inches. That factor, in and of itself, did not end the inquiry. The Church lies several feet from the property line. Had the building been recessed a substantial distance, such factor might support a finding that the intrusion was de minimis. Given the proximity of the Church building to the property line, however, defendants should have paid careful attention prior to constructing the retaining wall. Defendants’ retaining wall was,  the Court found, constructed with complete indifference to the property rights of the Church.

Under these circumstances, defendants had no right to build a retaining wall that encroached onto the Church’s property, even if the intrusion amounted to only 3.75 inches. This fact was especially true given that the second floor of the Church contains a bay window which extends to and sits above, but not over, the Church’s property line. This cupola was an integral component of the worship rituals of the Church. And, because the cupola juts out from the Church building, defendants intruded directly on the Church building and not simply its land. Viewed from that perspective, the encroachment could not be considered de minimis.

The Court further noted that, in determining whether or not the encroachment required judicial intervention or was de minimis, consideration must also be given to the special status of a religious institution under the First Amendment. The Court found some consideration should be accorded the Church for its religious status for purposes of the application.

The cupola was an essential component of worship. When viewed in this light, the encroachment  was not so easily dismissed as de minimis. As a religious institution, the Church should not have been treated with such indifference by  defendants. The ongoing construction project had obviously consumed almost the entirety of the defendants’ property. In an attempt to build aggressively on almost every square inch — indeed, fraction of an inch —  defendants carelessly intruded, not merely on the Church’s property, but on an object of religious worship. The Court found that defendants should have shown some respect to the Church and its worshipers and pursued avenues of cooperation, rather than employ aggressive expansion.

Defendants could not present the Court with a survey to substantiate their arguments. The Court assumed that, before undertaking the construction, a survey was required to determine the common boundary lines between adjacent properties. Here, only the Church had the proof of a survey. The Church’s surveyer stated that “[I]f Defendants continue to build upwards from the current placement of their foundation wall, Defendants’ new structure would eventually intersect with the underside of the Church’s bay window.” Defendants, on the crucial issue, had nothing to offer.

The Church understandably sought a preliminary injunction accompanied by the request for immediate temporary relief. From the Church’s point of view, the fear of encroachment on its property line was and remained well-founded.  For this reason, the Court found that it was reasonable for the Church to be concerned that  defendants’ construction project might encroach even further on its property, particularly the cupola.

To obtain a preliminary injunction, the Church was required to  establish a likelihood of success on the merits, irreparable injury absent a preliminary injunction, and a balancing of the equities in its favor.

The Court noted that “a preliminary injunction . . . depends upon probabilities, any or all of which may be disproven when the action is tried on the merits.” At this stage of the litigation, after hearing the arguments of counsel, the Court found that there was a likelihood that the Church would succeed in its trespass action against defendants.

The Court did not find the intrusion to be de minimis. Irreparable injury may occur to the Church absent the granting of a  relief. The Church’s survey established that defendants had already intruded onto its property. The Church had a reasonable basis to believe in the likelihood of a further intrusion.

The Church needed judicial assurance that defendants did not intend to intrude any further on the Church’s building and the right of its parishioners to worship. No such assurance was provided by defendants. A court order was needed to prevent any further intrusion.

The Court weighed the equities and found that they balanced in favor of the Church.

The relief temporarily barred defendants from performing any further work on the foundation wall that had been constructed along the western line of the Church’s property, on or above the foundation wall, or that encroaches onto the Church’s property. The order was not meant to stop construction of the building. The interim relief applied solely to defendants’ retaining wall that had already been erected and to any future construction that encroached onto the Church’s property.