True v. Bosch
True v. Bosch
Opinion of the Court
By the Court,
This is an appeal taken by the defendant below from judgment of the trial court granting damages for trespass upon real property and quieting title to the area in which the trespass occurred.
The parties are owners of adjoining residences in Winnemucca. Defendant’s predecessor in constructing his dwelling house had encroached upon the property of plaintiffs’ predecessor. A deed covering the area of encroachment was given. It specified in part: “It being understood that this instrument is intended to convey to the said party of the. second part so much only of said Lot Five as is now actually occupied by the residence or dwelling house aforesaid, and not more. The said parties of the first part hereby reserving unto themselves, their heirs and assigns, all that said portion of said Lot Five not actually occupied by said residence and dwelling house.”
On this appeal defendant assigns as error failure of the trial court to recognize title in the defendant to so much of the disputed area as lies beneath the eaves of her house. We feel that since the deed in question originally was to an area of encroachment the language used in that deed including reiteration of the phrase “actually occupied” supports the trial court’s construction of the deed as not including the land beneath the eaves. A strict limitation was quite apparently intended by the grantor. Accordingly we find no error here.
Defendant contends that the damages awarded are not supported by the evidence. There is ample support for the award of $60 compensatory damages for injury to the fence and shrubbery. The court found that the destruction was wholly unnecessary and in reckless disregard of plaintiffs’ rights. It properly distinguished between the assertion of a right in a peaceful and orderly manner and a resort to destructive force. The allowance of punitive damages under the circumstances was not error.
Affirmed with costs.
Reference
- Full Case Name
- ALMA FROBENIUS TRUE v. EDWARD M. BOSCH and CECIL G. BOSCH, His Wife, and HERBERT BOSCH and ROMA BOSCH, His Wife
- Status
- Published