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McMinn v. Damurjian

Decided: March 13, 1969.


Lora, J.s.c.


This action was originally instituted by plaintiffs Jack and Anna McMinn for injunctive relief against alleged encroachments and continuing trespass by their neighbors James P. and Mary A. Damurjian who had removed a portion of plaintiffs' concrete rear entrance platform and who were breaking up plaintiffs' walk, claiming it encroached on their property. The title companies were brought into the case as third-party defendants.

After pretrial conference all parties agreed to be bound by an independent survey which, when completed, disclosed plaintiffs and not the Damurjians were, in fact, the encroachers. Consequently, there remained for disposition by this court only plaintiffs' damage claims under the title policy which had issued to them by the Chelsea Title & Guaranty Company.

Defendant title company during trial consented to a judgment for the reasonable cost of replacing the walk and platform within the newly established property lines, which costs of $200 and $350, respectively, were testified to at the trial and agreed to as being reasonable and necessary.

Plaintiffs, however, seek additional damages by way of counsel fees and expenses incurred in connection with this litigation, and for diminution of property and market value due to reduction in the area of the side yard concomitant upon the binding independent survey. Defendant title company contends there is no liability for these additional claims since plaintiffs instituted a baseless suit against the Damurjians and the policy requires only that the insurer defend, not institute, an action; it is defendant's further contention that the independent survey has confirmed that plaintiffs

do have title to a 50-foot lot and hence there has been no actual loss of total area, albeit the side yard has been narrowed. Furthermore, defendant contends the policy says nothing about reasonable access and egress, and the title policy survey extends only to structures as set forth therein; that the survey referred to in the policy does not show a side entrance into plaintiffs' house and the location of the house on the survey, and in fact is within the plaintiffs' property lines.

There are three surveys here involved, the first of which was shown to plaintiffs at the closing of title by the closing attorney. That survey was thereafter superseded by a second survey, referred to in the rider to the policy and which shows a side yard of 3.56 feet at the front of plaintiffs' house and 3.57 feet at the rear thereof, while the independent or binding third survey shows the side yard to be 2.59 feet at the front of the house and 2.55 feet at the rear. It follows the side yard is actually 1.02 feet narrower than shown on the second survey.

The Mc Minns had wanted to erect a fence along the property line to protect an infant daughter from the potential danger of a 12-inch drop between their property and that of the Damurjians.

However, plaintiffs' side entrance door opens up on steps leading to the cellar and steps running up to the second floor. The side door was, before this suit and binding determination of the property line, used by plaintiffs to take out and bring in items such as a baby carriage and lawn mower which are stored in the cellar, there being no garage. The 30-inch door clears the new property line by only 1 inch, the total side yard now being only 2.55 feet, and hence such items can no longer be taken in or out of the door without trespassing on the neighbors' property. Then, too, if a fence were erected, the door which swings outward and which cannot open inward because of the inside steps could not be opened all the way.

In any event, it is clear that any access or egress is considerably more difficult due to the loss of the one foot of side

yard. True, the survey which plaintiffs saw for the first time at the closing of title in January, 1967 showed a side yard of only 2.80 feet at the front of the house and 3.00 feet at the rear, but it did indicate plaintiffs' walk was entirely within their property line and the rear platform was only 0.33 feet over. It is not clear why the title company did adopt the second survey, but they did do so by the aforesaid rider to the policy.

I give credence to the uncontradicted testimony of the expert witness Alexander Mc Mahon, a carpenter-contractor produced by plaintiffs, and find that the problem of ingress and egress can be resolved by replacing the present side door with a new one on the south side of the house. This alteration would also require construction of a drain and eight to ten feet of walk with an apron to link up with the rear walk, all of which would and could be done at a cost of $410. (Plaintiffs produced no evidence as to loss in market value, but if the defendant title company is liable, it is this court's opinion that the reasonable cost of the remedy is an acceptable, alternative method of computing damages.)

Under the terms of the policy Chelsea Title and Guaranty Company agreed to "indemnify, keep harmless and guarantee * * * from all loss or damage not exceeding the amount of insurance * * * by reason of defects in the title of the Party Guaranteed to the estate, mortgage, or interest described in Schedule A * * * or because of liens or incumbrances * * *; saving the estates, defects, objections, liens and incumbrances except in Schedule B * * *".

Schedule B of the title insurance policy dated January 18, 1967 sets forth a list of exceptions from coverage. The survey of November 22, 1966 was incorporated into Schedule B as Item 10, which was amended on October 31, 1967 to substitute the revised ...

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