## Facts

- A subdivision boundary between adjacent Lots 3 and 4 was incorrectly marked during development.
- Improvements serving a home on Lot 3 (including a septic system, retaining wall, concrete pad, and a lamp pole) were installed in reliance on the incorrect boundary and partially encroached onto Lot 4.
- Bob Law, Inc. retained Lot 4; Lot 3 passed to a developer, then to a bank after default, and was later purchased by homeowner Kenneth Hoffman.
- Hoffman did not obtain a survey before closing and later learned of the encroachments when Law objected and attempted to excavate the septic system.
- Hoffman obtained temporary and preliminary injunctive relief preventing removal of the septic system and sued seeking an implied easement to keep the encroachments in place.
- Law counterclaimed for trespass and sought a mandatory injunction compelling removal of all encroachments.

## Issues

1. Whether the circuit court abused its discretion by denying a mandatory injunction requiring removal of the septic system encroaching on Lot 4.
2. Whether the circuit court erred by allowing other encroachments to remain without conducting an explicit, item-by-item equitable balancing of harms and hardships.

## Decision

- The Supreme Court affirmed the denial of a mandatory injunction as to the septic system and related components, holding the circuit court did not abuse its discretion in allowing the septic system to remain temporarily with nominal damages.
- The Supreme Court reversed the denial of injunctive relief as to the remaining encroachments and remanded for the circuit court to balance the equities and hardships for each encroachment.
- The disposition was affirmed in part, reversed in part, and remanded.

## Legal Principles

- A continuing encroachment constitutes a trespass, but a mandatory injunction compelling removal is an equitable remedy subject to the trial court’s discretion.
- In encroachment cases, courts must balance the relative hardships: the burden of removal and feasibility of relocation for the encroaching party versus the harm to the landowner’s property rights from the ongoing trespass.
- Good faith matters in equitable relief; lack of bad faith by the current owner of the encroaching improvements may support denying immediate removal where removal costs are disproportionate to the benefit to the landowner.
- Equitable balancing must be specific to the encroachment at issue; a septic system essential to property use may warrant different treatment than smaller or more readily movable structures.

## Conclusion

The court held that although the encroachments were a trespass, immediate removal was not automatic: denying a mandatory injunction for the septic system was within equitable discretion, but the other encroachments required a separate, explicit balancing of harms and hardships on remand.


Hoffman v. Bob Law, Inc., 2016 S.D. 94, 888 N.W.2d 569 (S.D. 2016)