This is an action wherein both legal and equitable relief is sought. The parties own adjoining parcels of land located on Bell Island in Norwalk. Some time after September, 1921, the defendant built an addition to the house already standing on her land in such a manner as to encroach *Page 10 upon the plaintiff's property to the extent of an area 37 feet in length and, in width, 0.6 feet at one end and 1.3 feet at the other. The lack of the necessary lapse of time disposes of the first special defense claiming right by adverse possession.
In another special defense, the defendant alleges and the evidence establishes that in 1930 the defendant's husband and the plaintiff reached an agreement that the area in question would be conveyed to Mrs. Harper upon the latter agreeing to remove a portion of her garage and to refrain thereafter from constructing any building upon her land which should extend more than 24.7 feet northwesterly from a defined point. In carrying on his negotiations with the plaintiff, the defendant's husband was acting in his own behalf and had no authority to represent his wife. Nevertheless, the garage was reconstructed as he had agreed, Mrs. Harper making no objection to his doing so. However, she refused to sign the agreement he had made and yet she now relies on it as the basis for a claim that the plaintiff is estopped from obtaining her requested relief. This is totally without merit, because the agreement by which the defendant was to receive a deed of the land was predicated upon her agreeing, in addition to removing a part of the garage, not to erect any other building within a restricted limit.
The plaintiff has established her cause of action and the only real concern is as to the relief she ought to have. Under the broad equitable power of the court, the proposed decree would seem to be the fairest to both parties, especially in view of the fact that the defendant has, in her second special defense, attempted to accept the benefits of the agreement between her husband and the plaintiff.
A mandatory injunction to remove the offending structure should not issue. "Where .... there has been an innocent mistake .... or laches on the part of the plaintiff, or where the conduct of the defendant was not wilful and inexcusable, and where the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which plaintiff complains and it appear that damages will adequately compensate the latter .... it would be inequitable to grant a mandatory injunction." Bauby vs. Krasow, 107 Conn. 109,115. See, also, Waterbury Trust Co. vs. G. L. D. Realty Co., 124 id. 191, 199.
Judgment may enter as follows: if within twenty days hereof the defendant shall execute an agreement whereby she shall