RICARDO G. GARCIA and LUZ C. GARCIA, husband and wife, Petitioners,
TED HENLEY and AUDEAN HENLEY, individually and the marital community of them composed, Respondents.
an encroachment case in which the petitioners were denied a
mandatory injunction compelling removal of respondents'
encroaching structure. The right to eject an unlawful
encroaching structure is among the most precious contained
within the bundle of property rights. In exceptional
circumstances, when equity so demands, a court may deny an
ejectment order and instead compel the landowner to convey a
property interest to the encroacher. To support such an
order, the court must reason through the elements this court
listed in Arnold v. Melani, 75 Wn.2d 143, 437 P.2d
908, 449 P.2d 800, 450 P.2d 815 (1968) and reaffirmed in
Proctor v. Huntington, 169 Wn.2d 491, 238 P.3d 1117
(2010). The burden of showing each element by clear and
convincing evidence lies with the encroacher.
Arnold, 75 Wn.2d at 152. If this burden is not
carried, failure to enter an otherwise warranted ejectment
order is reversible error. Because the respondents failed to
carry their burden, we reverse and remand to the trial court
for the entry of judgment consistent with this ruling.
and Luz Garcia and Ted and Audean Henley are neighbors in
Tieton, Washington. The two families' plots share a
boundary line separated by a fence. The Henleys rebuilt the
boundary fence multiple times during the 1990s. Each time,
the fence crept farther and farther onto the Garcia property.
The largest encroachment, extending a foot across the
boundary line, occurred in 1997 while the Garcias were on
vacation. The Garcias objected to this intrusion, but took no
legal or other action. In 2011, the Henleys again moved the
fence. Mr. Garcia placed apple bins along a portion of the
1997 fence to prevent the Henleys from creeping farther onto
the property. As a result, the 2011 fence tracked the 1997
fence for that shielded portion, but arced onto the Garcia
plot for the 67 feet that did not have apple bins protecting
it, encroaching an additional half foot. The Garcias again
requested that the Henleys move the fence, and the Henleys
Garcias initiated suit in 2012, seeking ejectment and
damages. The Henleys counterclaimed, seeking to quiet title
in their name. In closing argument, the Henleys raised the
doctrine of "[d]e [m]inimis [e]ncroachment" to
argue that any minor deviation from the boundary line of the
adversely possessed property should be disregarded. Verbatim
Report of Proceeding (Oct. 14, 2015) at 146. The Garcias
responded in their closing argument that "de minimis
encroachment" was equivalent to "balanc[ing] [the]
equities, " and orally cited Proctor before
briefly summarizing why the five elements from
Proctor and Arnold were not met.
Id. at 149-50.
judge determined that the Henleys had adversely possessed the
land encompassed by the 1997 fence, roughly 288 square feet.
However, the judge also found that the 2011 fence encroached
an additional 33.5 square feet, and that the 2011 sliver had
not been adversely possessed. Rather than grant an injunction
ordering the Henleys to abate the continuing trespass and
move the fence, the trial court ordered the Garcias to sell
the 2011 sliver to the Henleys for $500. The judge failed to
enter findings of fact regarding the Arnold
elements. The Garcias appealed, alleging that the trial court
erred by not entering findings relating to each of the five
Arnold elements. The Court of Appeals affirmed, over
a dissent in part by Chief Judge Fearing. Garcia v.
Henley, noted at 198 Wn.App. 1037 (2017). The Garcias
appealed to this court, and we granted review. Garcia v.
Henley, 189 Wn. 2d 1002, 400 P.3d 1249 (2017). At issue
is solely whether the fence should be relocated to the
boundary line as set by the 1997 fence. We hold that it
trial court err by failing to order ejectment of a
trespassing structure without reasoning through the
court first set forth the relevant test in a 1968 case with
similar facts. Arnold, 75 Wn.2d at 143. Due to a
shared misapprehension of the property line, the Arnolds'
fence, two corners of their house, and a set of concrete
steps encroached on the Melani estate. Id. at 145.
The Melanis engaged in self-help and removed the encroaching
fence, and petitioned the court for a mandatory injunction
compelling removal of the other encroachments. Id.
court addressed the potential equitable bases for declining
to issue such an injunction, despite it being the typical
property remedy, and instead issue a damages award and compel
the landowner to convey a property interest to the encroacher
under a liability approach. Id. at 146-53. After
surveying precedential cases, Arnold set forth the
"test for when a court may substitute a liability rule
for the traditional property rule in encroachment
cases." Proctor, 169 Wn.2d at 500.
[A] mandatory injunction can be withheld as oppressive when,
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.
Arnold, 75 Wn.2d at 152. In Proctor, we
reaffirmed the application of this five-part test and noted
that due to its equitable nature, the question of whether
each Arnold element has been met should be analyzed
using the "inherently flexible and fact-specific"
equitable power of the court to fashion remedies that do
equity. Proctor, 169 Wn. 2d at 503. We reaffirmed
that a "court asked to eject an encroacher must instead
reason through the Arnold elements as part of its
duty to achieve fairness between the parties."
this mandate, the trial court in this case made no specific
findings regarding the Arnold elements. The only
conclusion of law or finding of fact relating to
Arnold or Proct ...