Washington Supreme Court Sharply Split on Equitable Exception in Encroachment Case: Robin Hood or Frankenstein?
Authored by: Alan Middleton
The Huntingtons unwittingly built their home, well, and garage entirely on property owned by their neighbor, Noel Proctor. When he learned of the true boundary between the properties, Proctor sued to eject the Huntingtons. The trial court refused to require the Huntingtons to remove their home. Instead, it required Proctor to deed to the Huntingtons the acre underlying the improvements (the acre represented approximately 3.3% of Proctor's parcel) and accept in return payment for the value of the land. A very sharply divided Washington Supreme Court affirmed in a 5-4 decision. Copies of the majority and dissenting opinions can be found here: [opinions]
The majority noted that originally property rights were enforced without exception, and ejectment was routinely granted. It traced the emergence of a "liability rule," whereby an encroacher may pay damages in lieu of removing the encroachment. The last significant expression of the Court's views was Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 800, 450 P.2d 815 (1968-69). In Arnold, the Court established the following test:
[A] mandatory injunction can be withheld as oppressive where, as here, it appears … that: (1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently locate the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a structure suitable for the area and no real limitation on the property's future use; (4) it is impractical to move the structure as built; and (5) there is an enormous disparity in resulting hardships.
Proctor argued that the Huntingtons could not establish entitlement under Arnold because the encroachment could not be deemed "slight." The majority disagreed, holding that the encroachment must be judged not in absolute terms, but in proportion to Proctor's property as a whole, and that the trial court's decision was within its equitable powers.
The dissent, authored by Justice Sanders, vigorously disagreed. Employing allusions to Robin Hood and Frankenstein, the dissent accused the majority of betraying property rights considered "sacred" in Arnold itself. It viewed the majority as reducing Arnold to a simple balancing of the equities. Instead, the dissent argued that an encroacher must establish each of the Arnold elements by clear and convincing evidence before seeking equitable relief, and that the Huntingtons did not, and could not, prove the second and third elements. As for the second element, the dissent could not accept that loss of a full acre of property could be deemed "slight." "Refusing to enforce a landowner's right to an entire acre of land is not mere erosion; it is a judicial taking of property for private benefit." As for the third element, the dissent argued that Proctor had lost a unique one-acre parcel, and that limitations on future use were substantial. Proctor was precluded from building his own home on that highly desirable spot, and the balance of his 30 acres were otherwise limited by heavy forest, hills, and marshland. In conclusion, Justice Sanders declared that Arnold established only a "narrow exception to Washington's historically ironclad protection of private property rights." He characterized the majority opinion as effectively overruling Arnold. (Justice Sanders characterized the majority as thinking itself a modern-day Robin Hood, stealing from the rich and giving to the poor, but disputed the analogy because the Huntingtons owned a parcel approximately the same size as Proctor; they could hardly be called "poor." Rather, Justice Sanders cast the majority as Dr. Frankenstein, implying that the majority had created a monster.)
On the simple question of encroachment, the majority opinion might be deemed a license to "build first and ask questions later." That would not be prudent. There is no guaranteed substitute for obtaining a survey before constructing. The trial court found, and the Supreme Court agreed, that the Huntingtons acted in good faith. A surveyor had set a pin on the northern boundary of Proctor's property and both parties assumed it marked the boundary between the properties. The surveyor returned when the Huntingtons began clearing their homesite and (mistakenly) confirmed the pin as marking the boundary when the boundary in fact lay 400 feet east of the pin. It would be rash to assume in another case that an encroacher will be found to have acted in good faith and without negligence. It will be interesting to see if and to what extent future courts rely upon this case with respect to the broader question -- the power of trial courts to exercise equitable powers to defeat what were once deemed absolute property rights.