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Garcia v. Henley

Supreme Court of Washington, En Banc

April 19, 2018

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.

          OWENS, J.

         This is 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.


         Ricardo 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 refused.

         The 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.

         The 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 should.


         Did the trial court err by failing to order ejectment of a trespassing structure without reasoning through the Arnold factors?


         This 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.

         This 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." Id.

         Despite 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 ...

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