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IN THE COURT OF APPEALS OF MARYLAND No. 43 September Term, 1995 _____________________________________

URBAN SITE VENTURE II LIMITED PARTNERSHIP et al.

v. LEVERING ASSOCIATES LIMITED PARTNERSHIP

____________________________________ Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ OPINION BY MURPHY, C.J. ____________________________________ Filed: October 13, 1995

The issue in this case is whether the Court of Special Appeals erred in requiring that, in a building encroachment case,

"compelling evidence" is necessary to establish innocent mistake under the doctrine of comparative hardship. We hold that a

defendant in an encroachment case who seeks to avoid injunctive relief through the doctrine of comparative hardship must prove innocent mistake by a preponderance of the evidence. I Levering Associates Limited Partnership ("Levering"), owns an office building and concrete driveway located at 6-14 South Gay Street in Baltimore City. Urban Site Venture II Limited

Partnership and LaSalle Partners Development II Limited Partnership (collectively "Urban Site"), planned to build a high-rise parking garage on the parcel immediately south of Levering's and hired Triangle Surveys, Inc. ("Triangle") to survey the site and locate the building on the lot. Urban Site and Triangle had access to a

1987 survey of the site by S.J. Martenet & Company ("Martenet"), but Triangle decided not to rely on the 1987 Martenet survey because it contained errors. Triangle surveyed the site and staked

out the building and Urban Site began construction in May of 1990. On June 15, 1990, when the garage was already three stories tall on the side adjacent to Levering's property, Levering filed

suit in the Circuit Court for Baltimore City alleging a permanent encroachment and seeking an injunction and damages. Levering then

hired Greenhorne & O'Mara, Inc. ("Greenhorne") to survey the site

and determine whether the garage encroached on its property.

The

Greenhorne survey determined that the garage encroached in a triangular area, from zero to 1.5 inches over nine feet. After receiving the Greenhorne survey, Levering advised Urban Site's contractor, Omni Construction, Inc. ("Omni") that it

believed the north wall of the garage encroached on its property. The construction supervisor immediately halted construction. Site had Triangle double-check its survey. Urban

Then Omni verified the

placement of the building on the lot and checked the Triangle survey's accuracy with the Baltimore City surveyor's office. Based

on this investigation, Urban Site determined that the garage did not encroach on Levering's property and resumed construction. After a three-day trial, Judge John N. Prevas held that the garage encroached a total of 1.3 square feet on Levering's

property. land

He determined that the market value of the sliver of upon was $200 and the cost of removing the

encroached

encroachment would be approximately $500,000.

He also found that

the encroachment did not impede Levering's use of its property or future development rights. Accordingly, Judge Prevas denied

Levering's request for a permanent injunction under the doctrine of comparative hardship and awarded it $14,801 in damages. Levering appealed to the Court of Special Appeals and Urban Site cross-appealed. The Court of Special Appeals, in an

unreported opinion, upheld the circuit court's finding that there was an encroachment, but vacated 2 the judgment and remanded,

holding, "[t]he trial court erred in balancing the equities of the situation without a prior determination of whether the Builders had encroached upon Levering's property by innocent mistake." On remand, Judge Prevas found that the encroachment resulted from an innocent mistake and again refused to issue a permanent injunction. He also reduced the damages award to $302, consistent

with a directive from the Court of Special Appeals. Levering again appealed to the Court of Special Appeals which, in an unreported opinion, reversed the circuit court's ruling, granted injunctive relief, and stated: We hold that, when an encroacher's own survey information (regardless of whether he professes knowledge of his own information) initially indicates that his structure will encroach, and when an adjoining landowner notifies the encroacher of the encroachment, supporting that notification with a survey that is consistent with the encroacher's original correct survey, the encroacher cannot thereafter claim innocence by procuring a third survey of that property to show no encroachment. We granted Urban Site's petition for certiorari to ascertain

whether, as it claimed, the Court of Special Appeals erred in holding Urban Site to a "compelling evidence" burden in proving their innocence. II Levering maintains that the Court of Special Appeals did not establish a "compelling evidence" burden of proof. The language at

issue in the Court of Special Appeals' opinion is as follows: The concept of the sanctity of private property ownership demands no less than severe and extensive scrutiny of the 3

innocence of the mistake, when encroachments occur; the ownership of one's property should not be divested except upon the most compelling evidence of innocence. Compelling evidence of innocence is non-extant in this case. (emphasis in original). We agree with Urban Site that the Court of

Special Appeals established a "compelling evidence" burden of proof and that it erred in so doing. Maryland courts recognize only three standards of proof: "[t]he lowest standard requires proof by a 'preponderance' of the evidence; the highest standard demands proof 'beyond a reasonable doubt;' an intermediate standard calls for proof that is 'clear and convincing.'" (1993). Wills v. State, 329 Md. 370, 373-74, 620 A.2d 295

In most civil actions, the party having the burden of

proof on an issue must prove his or her contention by a fair preponderance of the evidence. See, e.g., Lazenby v. F.P. Asher,

Jr. & Sons, 266 Md. 679, 683, 296 A.2d 699 (1972); Carter v. Carter, 139 Md. 265, 267-68, 114 A. 902 (1921); Ocean Plaza Joint Ven. v. Crouse Constr., 62 Md. App. 435, 447, 490 A.2d 252 (1985). In an encroachment case, the party seeking to avoid the issuance of a permanent injunction bears the burden of proving its innocence. Griffin v. Red Run Lodge, 610 F.2d 1198 (4th Cir. 1979); see also Operations Research Inc. v. Davidson & Talbird, Inc., 241 Md. 550, 217 A.2d 375 (1966); Noffsinger v. Noffsinger, 95 Md. App. 265, 620 A.2d 415, 422 (1993); Daniels v. Sup't, Clifton T. Perkins State Hos., 34 Md. App. 173, 366 A.2d 1064, 1069 (1976); cf. Ewachiw v.

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Director of Finance of Baltimore, 70 Md. App. 58, 519 A.2d 1327 (1987); Keeney v. Prince George's Cty. Dept. of Soc. Serv., 43 Md.App. 688, 406 A.2d 955 (1979); Plummer v. Waskey, 34 Md.App. 470, 368 A.2d 478 (1977); Maryland State Bar Association, Maryland Civil Pattern Jury Instructions

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