Kathleen Johnston Jarboe

This memorandum of law was an assignment for a legal writing course. It contains original legal research on a fictional situation (a neighbor constructing their fence well into the plaintiff's yard). The writing opposes a motion for summary judgment by the fence-building neighbor.

LISA JOHNSON

Plaintiff

v.

MARK DAVIS

Defendant

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*

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IN THE

CIRCUIT COURT 

FOR

BALTIMORE COUNTY

CASE NO: 12-CV-3456789

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION TO AMEND COMPLAINT

The Plaintiff respectfully submits this Memorandum in Opposition to Defendants’ Motion for Summary Judgment. For the reasons discussed hereinbelow, Defendants’ Summary Judgment Motion should be denied. Also, the plaintiff moves to amend the complaint to add the charges of trespass and encroachment to the original charge of private nuisance. The plaintiff seeks an injunction and punitive damages in the suit.

UNDISPUTED FACTS

The Defendant, Mark Davis, who lives at 125 Elm Street, Baltimore, Md, 21001, shares a property line with the Plaintiff, Lisa Johnson, who lives at 123 Elm Street, Baltimore, Md, 21001. Mr. Davis purchased his property in 2015. He has used it primarily as a rental property. In December 2024, Mr. Davis began building a wooden fence along the adjoining boundary line of his property and Ms. Johnson’s property. The fence was built several feet onto Ms. Johnson’s property, encroaching on her property and obstructing her from accessing a portion of her backyard. During construction, Ms. Johnson alerted him that the fence was several feet into her property. Ms. Johnson made several requests to Mr. Davis to fix the encroachment. Mr. Davis has refused to relocate the fence.

STANDARD OF REVIEW

In ruling on motions for summary judgment, the Maryland standard is for the court to look at the issue in the light most favorable to the non-moving party, which in this case is the plaintiff. Ayala v. Lee, 215 Md. App. 457, 467, 81 A.3d 584, 590 (2013). Furthermore, summary judgment can only be granted when there is no question of fact, no matter how slight. Id.

The court considers the question of whether a nuisance exists to be both a question of law for the court and a question of fact for the jury to decide. 17 M.L.E. Nuisances § 33 (2026). The court decides if the case meets the elements of a nuisance, and the jury decides “whether the alleged nuisance caused the losses complained of, whether the defendant participated in maintaining the nuisance, whether damages suffered were a direct result of the nuisance.” Id.

ARGUMENTS

1. The plaintiff has presented genuine issues of fact, regarding the nuisance created by the defendant, and has established the elements of a private nuisance case.

A nuisance, broadly, includes things or actions that interfere with the enjoyment or reasonable use of a property. 17 M.L.E. Nuisances § 1 (2026). Ms. Johnson cannot access part of her property due to the fence constructed by Mr. Davis. Thus the fence obstructs Ms. Johnson from the use and enjoyment of her property, meeting the legal standard for a nuisance. Id.

In further defining a private nuisance, Maryland law requires a two-part test: “(1) viewing the defendant's activity, was the interference unreasonable and substantial? and (2) viewing the plaintiff's alleged harm, was the inconvenience or harm caused by the interference objectively reasonable?” Blue Ink v. Two Farms, Inc., 218 Md. App. 77, 94, 96 A.3d 810, 821 (2014).

Ms. Johnson stands on firm ground in asking a jury to settle these questions of fact. For the first part of the private nuisance test, 1. Is it an unreasonable and substantial interference that Mr. Davis’s new fence blocks Ms. Johnson from accessing her property? And for the second prong of the private nuisance test, 2. Was her loss of property an objectively reasonable loss?

With genuine questions of fact present in this case, there are no grounds for summary judgment. Ayala, 215 Md. App. at 457, 467, 81 A.3d at 584, 590. See also 17 M.L.E. Nuisances § 33. (Explaining that both jury and the court determine the question of fact in the case of a nuisance tort).

2. Some language regarding private nuisances insinuate that an action cannot be a private nuisance if there are elements of trespass. But a closer reading clarifies that the two torts are related and can both be present. Both torts are present in this case.

Maryland cases define a private nuisance as a “nontrespassory invasion of another's interest in the private use or enjoyment of land.” Blue Ink, 218 Md. App. at 77, 92, 96 A.3d at 810 (quoting Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80, 642 A.2d 180 (1994)). See also Jones v. Smith, 265 Md. App. 248, 256, 334 A.3d 1179, 1184 (2025). This definition is adopted from Section 821D of the Restatement (Second) of Torts (1965).

The wording raises the question of whether the elements of trespass in an action mean the action is not a private nuisance. But the treatise clarifies that both torts can be present.

If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both.

Restat 2d of Torts, § 821D. For a trespass action, a plaintiff must show “(1) an interference with a possessory interest in [their] property; (2) through the defendant's physical act or force against that property; (3) which was executed without [their] consent.” Uthus v. Valley Mill Camp, Inc., 472 Md. 378, 246 A.3d 1225, 1239 (2021). See also Hardie v. Deutsche Bank Tr. Co. Am., 544 F. Supp. 3d 547, 556 (D. Md. 2021). In this case, the defendant’s action meets the legal definition for trespass. He interfered with the plaintiff’s possessory interest in her property by the physical act of building a fence to block her from part of her property. The fence was built without her consent, as evidenced by the many letters she wrote asking Mr. Davis to move the fence.

3. The plaintiff amends the complaint to add a charge of trespass.

Having demonstrated that Mr. Davis’s actions also qualify as trespass, the plaintiff moves to add the charge of trespass. The plaintiff has three years to file the original complaint. Md. Code Ann., Cts. and Jud. Proc. § 5-101 (LexisNexis 2026). She is well within those limits as the defendant started fence construction in December 2024. Also, the plaintiff can amend the complaint any time prior to 15 days before the trial date. Md. Rule 3-341.

4. The plaintiff seeks an injunction to remove the fence, nominal damages, and punitive damages for the trespass and private nuisance.

This plaintiff seeks an injunction to remove the fence. Nuisance law allows the complainant to seek an injunction from the courts to end the nuisance. 17 M.L.E. Nuisances § 19. Maryland rules require a full adversarial hearing for an injunction, which is another reason that summary judgment is inappropriate in this matter. Md. Rule 15-505.

This plaintiff seeks nominal and punitive damages as well. Complainants can seek punitive damages in nuisance cases, when nominal damages have been awarded. 17 M.L.E. Nuisances § 36. To ask for punitive damages, the plaintiff must show willfulness and malice from the defendant. Id. Mr. Davis’s construction of the fence, despite the plaintiff’s multiple requests to move it, show the ill will necessary to form malice.

Likewise with respect to trespass, Maryland law allows the complainant to seek damages for the natural damage of the trespass and the proximate damages that followed from the initial tort. 21 M.L.E. Trespass § 28. Ms. Johnson seeks removal of the fence, as the natural cause, and attorney fees, as the proximate damages that accrued from Mr. Davis’s decision to build the fence, despite the plaintiff’s requests to stop because the fence trespassed on her land.

5. Being within the statute of limitations for filing a complaint and amending a complaint, the plaintiff adds a charge of encroachment.

An encroachment is the “unlawful gaining or invasion by one owner upon the soil, or space above the soil, of an adjoining owner.” 1 M.L.E. Adjoining Landowners § 4. The defendant’s actions of usurping some of the plaintiff’s land through the construction of his fence on her land qualifies as an encroachment. Penalties for this action include ordering the removal of the encroaching structure or monetary compensation for the loss in value of the encroached land. Id. The plaintiff seeks the removal remedy, as to the encroachment charge. Case law and constitutional law back her right to seek the fence’s removal.

“The right to own and enjoy property depends, not upon its value as compared with other property, but upon constitutional guarantees. No court of law or equity has the authority to compel a landowner to surrender his property to another person in exchange for a sum of money, for a taking of one person’s property for the private use of another, even with just compensation, is a deprivation of property without due process of law in violation of Article 23 of the Maryland Declaration of Rights and the Fourteenth Amendment of the Constitution of the United States.”

Easter v. Dundalk Holding Co., 199 Md. 303, 307, 86 A.2d 404, 406 (1952). In Easter, the court sided with the plaintiff, who lost only a small sliver of land valued at $500 when an adjoining landowner built a theatre just slightly onto his property. Estimates in the Easter case showed that it would cost the theatre $60,000 to adjust its wall. Mr. Davis’s cost is far less than that of the theatre. The courts affirm in Easter that “it follows that no person can take his neighbor's property to improve his own merely because his neighbor's loss will be less than his own gain.” Id. Since the Easter ruling, courts have considered the balancing of hardship and aesthetics in encroachment cases, especially when the controversy is over a small sliver of the complainant’s land. Amabile v. Winkles, 276 Md. 234, 242, 347 A.2d 212, 216 (1975). But such considerations only apply when the mistake was innocent. Id. Mr. Davis has no grounds for such a claim. Ms. Johnson sent him numerous letters and had several conversations with him on the topic of the fence being placed within the boundaries of her property.

CONCLUSION

There are genuine issues of fact in the private nuisance charge. Even if there were only slight questions of fact, summary judgment would be precluded. Ayala, 215 Md. App. at 457, 467, 81 A.3d at 584, 590. Furthermore, the court is required to examine the summary judgement motion in the light most favorable to the non-moving party. Id. Plaintiff requests motion for summary judgment be denied.

In addition, the plaintiff has amended the complaint to include charges of trespass and encroachment. The plaintiff also seeks an array of damages, including punitive damages. For the desired injunction to remove the fence, Maryland courts require a full adversarial process before using such an enforcement tool, once again making this case inappropriate for summary judgement.