Case Addresses Fence Boundary Line Dispute Between Neighbors

The Fourteenth Court of Appeals in Houston recently ruled in Malhorta v. Quintanilla, a lawsuit that involved a boundary line dispute and the location of fence and debris.

Photo by duong chung 


Mr. Quintanilla and Mr. Malhorta are neighboring landowners.  Quintanilla filed a lawsuit against Malhorta seeking damages for trespass because of a fence encroaching on his property.

Quintanilla hired a surveyor who concluded that the fence dividing their two properties encroached onto Quintanilla’s property.   As early as 2017,  Quintanilla requested Malhorta move the encroaching fence to the property boundary line. He also requested Malhorta to move the trash and debris sitting along the fence. Malhorta refused to do so until he had “solid proof” that the fence was not on the property boundary.  At trial, however, Malhorta admitted Quintanilla’s survey showed the true boundary line.

Quintanilla testified that he hired  a contractor to give him a quote of $14,720 to remove all the debris and $6,720 to build a new fence.  This equated to a total cost of $21,440. Quintanilla did not proceed with removal of the debris and fence because it was not his fence, and Malhorta threatened him with physical violence if he tried to remove the fence.  Quintanilla entered quotes into evidence as Exhibit 5 of $14,720 to remove the fence and debris and of $12,420 to replace the fence.  The quotes in Exhibit 5 totaled $27,120. Quintanilla testified he received other quotes to do the work, but these were the lowest bids.  There was no explanation as to the difference in total cost between Quintanilla’s testimony and Exhibit 5.

A bench trial was held and the trial judge sided with Quintanilla.  The court awarded him damages for trespass in the amount of $21,440.  Malhorta appealed that verdict to the Fourteenth Court of Appeals.

Applicable Law

To recover damages for trespass to property, Quintanilla must prove that: (1) he owns or has legal right to possess real property; (2) Malhorta entered Quintanilla’s land and the entry was physical, intentional, and voluntary; and (3) Malhorta’s trespass caused injury to Mr. Quintanilla.  The entry onto the property need not be in person but may be made by causing a thing to cross the boundary of the property.  With regard to encroachment, an owner may not build a building or structure, in whole or in part, beyond the line dividing his land from that of the adjoining owner without incurring liability for doing so.

In the situation of temporary injury to real estate, damages are measured by the ordinary cost and expense of restoring the land to its former condition, plus the loss or damages caused by being deprived of the use of the land, with interest.  The amount is limited to the cost necessary to place the plaintiff in the position he would have been in but for the trespass.

Court of Appeals Opinion

The court sided with Quintanilla.  [Read Opinion here.]

Trespass claim

First the court addressed the trespass claim.  Malhorta argued that because Quintanilla never witnessed him physically trespass on Quintanilla’s property, the evidence was insufficient to support a finding of trespass.

The Court disagreed.  Here, the parties stipulated that the fence encroached upon Quintanilla’s property.  Malhorta refused to remove the fence and debris and refused to allow Quintanilla to remove the fence and debris.  These refusals, particularly when done with the threat of physical violence, were legally sufficient to show a physical, intentional, and voluntary trespass the court reasoned. Although the fence was there when Malhorta purchased the property, when he refused to remove or allow removal of the fence upon request, he ratified or adopted the act of another for his own benefit and was equally liable. The record is clear that Malhorta exercised control of the land on his side of the fence since purchase.  Even though he never personally stepped foot on Quintanilla’s property, Malhorta became liable for trespass by exercising control over his own property and failing to remove the fence from Quintanilla’s property.

Thus, the trial court correctly found in favor of Quintanilla on his trespass claim.


In his second issue, Malhorta argued there was insufficient evidence of damages to support the judgment of $21,440.  Again, the court disagreed.

First, the court noted that both parties agreed that there were “massive” concrete tubes along the fence line that one person could not move, that trees needed to be cut back, and that trash and other debris that needed to be removed. This supported the conclusion that the quoted amounts to remove the debris were reasonable and necessary.

Second, Malhorta argued that because the trial court only awarded $21,440, rather than the entire $27,120 quoted in Exhibit B, the damages were not supported by any evidence.  The trial court had discretion to award damages within the range of evidence presented at trial.  This was true even if the precise method of arriving at the damages was unclear.  Here, the award was within the range of evidence provided by Quintanilla and, thus, within the court’s discretion.

Finally, Malhorta argued that Quintanilla failed to distinguish between permanent and temporary damages.  Here, the fact finder was entitled to make that determination and award damages accordingly.  The cost to repair damage to property is a proper damage measure in a temporary injury case.  Thus, the trial court awarded the proper damage award for a temporary injury.


The court affirmed the trial court’s verdict of judgment in favor of Quintanilla and the damage award of $21,440.

What happens next?

Keep in mind Malhorta could decide to appeal this case to the Texas Supreme Court.  The deadline to do so has not yet passed.

If he does not seek Supreme Court review, or if the Court declines the petition for review, Quintanilla will be awarded the damages of $21,440.

Why do we care?

It is not at all uncommon for a fence to be encroaching on a neighboring property.  This case is a reminder that when that occurs, the encroaching owner may be liable for removal and replacement of the fence.  The best advice may be for all landowners to ensure that they have a recent survey prior to building any fences or structures. This simple step, while an added expense upfront, can save time, headache, litigation, and money down the road.

Another important point here is that if a fence is built on the property of another by a prior owner, a subsequent owner who refuses to remove the fence may be found liable.  The court noted Malhorta did not build the encroaching fence, but because he owned the property now and refused to remove the fence, he was liable.

For more information about Texas fence law, click here for a handbook and here for a podcast episode.

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