summary judgment partly counsel i'm so sorry to have to interrupt you i'm out of water today things are a little awkward our third panel is not near and i want to explain it to you and i keep forgetting to do it so we're going to start to time will repeat let me give my explanation of just disconnect is the third panel member he's on able to be here today he's going to listen to the oral arguments because they are recorded and we will conference with him and resolve these cases but he won't be joining us today and again i would argued in favor of the nonmoving pleadings and everything that's on file and based on that judge on the nuisance fine we feel that we do have a argument  carol of the first case and the specific language in there of the balancing act that the trial court needs to perform between the plaintiff and the defendants use of their lands and here the best analogy i could come up with for the argument today is if i bought a brown stone over the right field wall at wrigley field because i like to look at wrigley  field i don't think it would give my neighbor the right to cross my property line and build some type of a structure that partially obstruct my view of wrigley field because of that and that particular location is a unique  complained about that but we we did move it while i'm on that point i'll just say quickly that point real quick that's one of the things that we're feeling is because damages of two thousand dollars on that trespass in your honour's we feel that that was in excess of or on the nominal damages if just the court were to look  in the record the fifteen the exhibit that was presented by the defendant you know we're only talking about a very small sliver property in a area where this is right by the bay  recreational use there's nothing fancy about this area and it's just a total windfall of that nominal damages two thousand dollars be awarded on that particularly when my client immediately took had argued against that for our case and says it was improper to do that so we just feel that was certain of the use of aggression if you didn't take the position that it was improper you were asking for the scene we were asking for the same here but so plaintiff's property and that is a clear finding of fact that was presented in the readings and we felt that that should've gone to a hearing instead of being finalize client went out obtain the survey to determine where the property line actually was it was at that time for the first time than anybody discovered that there was a coachman both ways and within three months after the enclosure being built then in december of two thousand and fourteen my client filed suit so from that point where the actual problem here we feel th latches did not apply my client did not sit on his rights and did not do anything to prejudice the than in any way in bringing this action so again the trespass claim we well that is an excellent question as always your honor i think that that should've been ducktail with a further hearing on trespass issues as well to get all the issues before the court we feel that there is no clear proof that there was exclusive use of this property by mr can sleep anywhere where that four he didn't even know that there was a problem with the property line nobody really knew that the property line had been breached in either direction and so to me that's also dispositive potentially for explosive use of the property or even knowing that you were adversely possessing a piece of property if you didn't know where the property line was for the fact that what you're building across that property line so you are correct that the trespass and the adverse possession does tell you factually and we so in summary your honour's the you feel the nuisance claim should not have been cut off the summary judgment say trespass claim should not have been cut and trespass claim trespass first of all is an intentional act and in this case there has been no proof or nothing shown by john oliver that mr kinsley intentionally trespassed onto the plaintiff's property the survey which they allege and did in this case took place of twenty fifteen as you heard as the record shows my client started in one thousand nine hundred one when he built cinder blocks the cinder path and  client initially started putting up the cinder block and all right that happen right now we know that opposing counsel they had a survey that showed that it in pros do just me to that that encroachment was where he your client started back in ninety three i think you said putting the cinder block and all of that on it there was evidence in the record that your client also had a survey down and well yes i requested a formal survey that show deeper into this lawsuit we then did hire and paid for and in the record is a formal survey from four points of land survey which was done in this case and it did show the encroach t of my clients starting with that cinder block area for the plane to slam it but then that the deck and the addition of he built above his property one thirty five so that that edition has the edition in addition to this in the box is a little over onto the disputed property so i think to answer your second question you know i think as i have my notes here the total about any of the surveys is one point four feet two possibly five point seven skip quickly past the ever positions i want to hit damages the trespass for mr milosevic trespassing on my client's property he admitted to going over there without my client's knowledge taking this bacco digging things up and moving yes he did that the word of nominal and the court that my client's testimony was and it was on refuted that area is still dug up there was nothing done to it it's a depression as dirt was banged up concrete and it got moved away so we believe that the court's can't just leave it as is as to the survey i just want court to be aware i did not the record i went back and looked at it on page one fifty six but i did not state that  specifically allowed by statute but parties can claim it as damages which in this case quite title mr can see we asked for the thousand dollars he paid for the survey to be a work i don't think there's the right for attorney's fees that's what i stated i think there is a right to see this or that's what i asked for we were the thousand dollars that we paid for our survey just as mr robert asked for his client to be paid for his service so we would t and exclusivity is not that you have to have knowledge and exclude everybody else from using the property ok what it means is you have to as the grant posthaste stated does it advise the world and other the property is appropriated and being occupied and examples from the brand horse case regard maintenance owing weeding raking and my client testified in  one after he took this property and built that cinder block you see it's gravel driveway and i would ask the court if you looked at the pictures in the record see two hundred is probably the best picture which shows kind of the question with the cinder blocks the pad which goes these of the additional two by fours that lead to the decking and there's the wooden his tractor the testimony which was cited in opposing counsel brief said three in his testimony in the record he said he went over to my client's concrete pad had a few beers on occasion but when he was asked he never stored anything on there he never kept anything there he never maintained it it was saw my client then build his deck and continue to do what he did so we believe the court properly ruled after weighing all the evidence that my client met his burden under evers possession and the exclusive use contention which the plate is making in this case last i just like to address the latches itch issue quickly in twenty thirty my client built that edition of mr mills and the record shows saw that he knew that and no point in time twenty thirty to twenty fifty if he ever complained to my client and i would state you can review the record up and down as i have there is no doing my client got served that's when he stopped and you see the type of big pictures and that's just because he's so certainly i would argue that it's true those sat out his rights he did not bring that forward in on notice that he was going to be closing the porch on his property i believe that my client tested a claim saying that if anything had been said it was only said  outside while the parties were around their respective driveways and that the actual hand wasn't as clear as it has been a trade day there was certainly no written notice no letter dropped off us any further indication that there was going to be an inclosure property until my client came back and discovered that it would solve the the lashes argument i believe the true start of the problem was in the summer of two thousand and fourteen and then back to the adverse possession line i believe we have shown that there was not exclusivity it has to be you know one hundred percent exclusiv over twenty years on continuous basis and the evidence in the record shows that there wasn't that exclusivity and there's also an indication i believe it was not brought up  but i believe it was brought up in the depositions that the army corps of engineers also control some of the water from down that part of the bay and