## Facts

- John Murphy owned land adjoining property owned by the Bolger brothers.
- The Bolgers constructed a barn on their own parcel.
- A side of the barn’s roof projected horizontally across the boundary line and into the space above Murphy’s land.
- The projection was about sixteen feet above Murphy’s land surface.
- No portion of the barn’s foundation or walls encroached onto Murphy’s soil; the encroachment was solely the overhanging roof in the airspace.
- Murphy sued in ejectment, asserting the projection constituted an ouster of his possession of the affected portion of his land.
- The trial court entered judgment for Murphy, and the Bolgers appealed.

## Issues

1. Whether a permanent roof projection crossing the boundary line into the airspace above a neighbor’s land constitutes an “ouster” supporting ejectment.
2. Whether the proper remedy for such an elevated encroachment is ejectment rather than an action on the case for nuisance.

## Decision

- The Vermont Supreme Court affirmed the judgment for Murphy.
- The court held ejectment would lie because the overhanging roof constituted an actionable dispossession of Murphy’s land, understood to include the space above the surface.
- The court rejected limiting Murphy to nuisance damages where a fixed structural encroachment takes and occupies part of the neighbor’s protected column of space.

## Legal Principles

- Ejectment is available for recovery of possession of corporeal interests in land where a right of entry exists and the interest is such that possession can be delivered in execution.
- “Land,” in its legal meaning, extends upward as well as downward; ownership includes protected rights to the space above the surface against physical encroachments crossing the boundary.
- A fixed structural projection over a boundary line can constitute an ouster of possession, even if the encroachment occurs only in the airspace and not in the soil.
- An owner need not be forced to surrender occupied portions of land to a trespasser in exchange for damages when the encroachment is a continuing physical occupation.

## Conclusion

A barn roof overhang extending across a property line into the airspace above an adjoining owner’s land is a possessory encroachment that supports ejectment, not merely a nuisance claim for damages.


Murphy v. Bolger, 60 Vt. 723 (Vt. 1888)