## Facts

- Plaintiffs owned four neighboring properties benefitted by a 16-foot access easement across defendant’s beachfront lot.
- Defendant bought the servient lot in 1993; his title report referenced the easement only by book-and-page, his deed did not mention it, and an attached map did not show its location.
- The easement’s location was not apparent on visual inspection, and defendant lacked actual knowledge of its true placement when construction began.
- Defendant proceeded with home construction in 1994 after obtaining a building permit and relying in part on a city planner’s statement that the lot was buildable.
- Plaintiffs observed objects placed in the easement and suspected the house might encroach, but did not promptly notify defendant or seek relief because they expected separate litigation to stop construction or require removal.
- In April 1995, after the house was substantially complete, plaintiffs sued for a mandatory injunction to remove all encroachments from the easement, including the house.
- The house encroached approximately 2.08 feet into the southern portion of the 16-foot easement; removing it from that strip would seriously impair structural integrity and impose substantial economic hardship on defendant.

## Issues

1. Whether plaintiffs’ delay in bringing suit barred mandatory injunctive relief under laches.
2. Whether a court may order removal of a completed structure that slightly encroaches on an easement without weighing relative hardships and other equitable considerations.

## Decision

- The Court of Appeals reversed the mandatory injunction and remanded.
- On de novo review of the equitable decree, the court concluded the trial court erred by ordering removal without balancing the equities.
- The court treated defendant as a good-faith encroacher who lacked actual notice of the easement’s true location.
- Plaintiffs’ knowing delay and strategic inaction, combined with the minor extent of the encroachment and severe hardship of removal, made a mandatory injunction improper on this record.

## Legal Principles

- Mandatory injunctions compelling removal of improvements affecting real property are discretionary equitable remedies and are not issued automatically upon proof of encroachment.
- In easement or boundary encroachment disputes, courts must consider relative hardships; injunctive relief may be denied when the defendant’s burden is grossly disproportionate to the plaintiff’s benefit.
- A plaintiff’s delay and failure to act while a defendant changes position in good faith can weigh heavily against mandatory injunctive relief (laches-type equitable considerations).
- Good-faith error and lack of actual notice, particularly where recorded materials do not clearly disclose the easement’s location and the encroachment is slight, are material to the equitable remedy analysis.

## Conclusion

The court held that ordering removal of a substantially completed house for a minor encroachment into an easement required a balancing of hardships and other equitable factors, and it reversed and remanded because the trial court granted a mandatory injunction without that analysis.


Vossen v. Forrester, 155 Or. App. 323, 963 P.2d 157 (Or. Ct. App. 1998)