Arnold v. Melani

• Decision Date: 21 February 1968
• Docket Number: No. 39046
• Citation: Arnold v. Melani, 437 P.2d 908 (Wash. 1968)
• Court: Washington Supreme Court
• Parties: Merle ARNOLD and Maureen Arnold, his wife, Respondents and Cross-Appellants, v. A. F. MELANI and Jane Doe Melani, his wife, Appellants and Respondents.

Page 908

437 P.2d 908

Merle ARNOLD and Maureen Arnold, his wife, Respondents and Cross-Appellants, v. A. F. MELANI and Jane Doe Melani, his wife, Appellants and Respondents.

No. 39046.

Supreme Court of Washington, Department 2.

Feb. 21, 1968.

Greenwood, Shiers & Kruse, Leonard W. Kruse, Port Orchard, for appellants.

Sanchez & Martin, James B. Sanchez, Bremerton, for respondents.

LAWLESS, Judge. ^*

This is an encroachment case in which the appellants, A. F. Melani and his wife (hereinafter called defendants), as to their cross-claim were denied a mandatory injunction.

Bremerton Heights Addition was platted in 1908. In 1930, defendants acquired title to lots 18 and 19 within the plat. The lots were unimproved, uncleared of brush or timber, and not located by stakes or monuments. In 1947, a surveyor, Olin M. Sprague, located corners of adjacent lots and established two monuments. In 1953, a Mr. William M. Davison purchased lots 16 and 17 which are the lots adjacent to the defendants' lots. In 1956, Mr. Davison obtained a building permit to make improvements on a dwelling which had been constructed by his predecessor in title. The controverted improvements occurred in early 1957, extending the house toward defendants' lots. The common line in question is the east side of lot 17 abutting the west side of lot 18.

Later in 1957, defendants came to the area and for the first time saw their lots. Defendants observed Mr. Davison cutting timber at or near the southwest corner of lot 18. In the conversation that ensued, Mr. Davison claimed the area had been surveyed and that it was a part of lot 17. The defendants, at that time, indicated they wished to see the survey.

Before leaving to return to their home in California, the defendants gave their address to a long-time resident of the area, Mrs. Rowan, and asked her to inform them if anything happened in regard to the property. Following the defendants' departure a fence was constructed between lots 17 and 18 by Mr. Davison. In early 1959, Mrs. Rowan wrote to the defendants advising them that Mr. Davison was selling to Mr. Leo Brott, and if defendants wanted to do anything about the property line in question, now would be the time. The defendants took no action and the sale was consummated to Mr. Brott. In March 1961, the Leo Brott estate sole lots 16 and 17 together with the house to respondents, Merle Arnold and Maureen Arnold (hereinafter called plaintiffs).

Approximately five years after their first visit, in November 1962, the defendants returned to their property and hired Mr. Ward C. Muller to obtain a survey of the lots in question. Defendant, Mr. Melani, testified at the trial: '(W)e thought we better get this thing straightened out and we came up with that intention.' Mr. Muller determined that the east fence of the plaintiffs encroached upon defendants' lot 18 a distance of 8.4 feet on the north end and 9.7 feet on the south; that the southeast corner of plaintiffs' home extended 3.28 feet onto lot 18 and the northeast corner of the home extended 2 feet over the true line; and that concrete steps at the northeast corner of lot 17 encroached upon lot 18. With this survey in hand, defendants proceeded to tear down the fence. After a heated conversation defendant, Mr. Melani, requested that plaintiffs' house be moved.

The 8-foot variance between the surveys of Mr. Sprague and Mr. Muller resulted from an error in the plat. The plat has lines running parallel, yet the ends of the parallel lines are divided by different distances. Mr. Sprague accepted the distances listed in the plats, whereas Mr. Muller considered them to be erroneous. The trial court accepted Mr. Muller's interpretation. If Mr. Sprague's line had been accepted, that is, the listed distances referred to on the plat, the fence would have been properly located and the house and steps would have been well within the borders of lots 16 and 17.

The trial court found that the plaintiffs had not acquired title through adverse possession; that the total value of lots 17 and 18 was the sum of $750; that the damage resulting from the loss of use as a result of the encroachment was not more than $125; that the encroachment did not interfere with the use of the remaining property; that the house was worth approximately $10,000 and that the part of the house which encroached could not be removed without causing a substantial destruction of the whole structure.

The trial court ruled that

the Court does refuse to grant the defendants a mandatory injunction against the plaintiffs requiring the plaintiffs to remove their home or parts thereof, together with their patio, walkway, and steps from the defendants' property and in lieu thereof the Court does grant unto them an easement to maintain said improvements in the present location for so long as the same may continue to exist, and * * * that the defendants be * * * granted a judgment * * * for the sum of $125.00, * * *.

The central question posed by the defendants' assignments of error is whether or not the trial court has a discretionary right to refuse equitable relief, having ruled that plaintiffs' building encroached on the defendants' land, and having ruled that the plaintiffs have not perfected an interest by adverse possession. As an additional basis for the denial of injunctive relief, the plaintiff contends that the equitable principles of 'de minimis,' 'equitable estoppel,' or 'laches' should apply.

We will briefly review the equitable principles urged by the plaintiff, and the cases cited by both counsel in support of their contentions.

All states hold that a mandatory injunction is a proper remedy for an adjoining landowner to seek for the purpose of compelling the removal of an encroachment. See Annot. 28 A.L.R.2d § 3 at 686 (1953). Many states hold that there are circumstances in which the court can refuse to enjoin upon the theory that this extraordinary injunctive relief is equitable in nature and "(i)t is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction shall issue." McCann v. Chasm Power Co., 211 N.Y. 301, 305, 105 N.E. 416 (1914). See also Annot. 28 A.L.R.2d, supra, at 699.

Equitable estoppel, estoppel in pais, Peplinski v. Campbell, 37 Wash.2d 857, 226 P.2d 211 (1951); estoppel by conduct, State v. Northwest Magnesite Co., 28 Wash.2d 1, 182 P.2d 643 (1947); estoppel by misrepresentation, Kessinger v. Anderson, 31 Wash.2d 157, 196 P.2d 289 (1948); James v. Christ Church Parish, 29 Wash.2d 103, 185 P.2d 984 (1947), are titles given to an equitable doctrine which in general subscribes to the principle that a man shall not be permitted to deny what he has once solemnly acknowledged, Harmon v. Hale, 1 Wash.Terr. 422 (1874), and is more specifically defined as requiring three elements: (1) An admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act. Kessinger v. Anderson, supra; Thomas v. Harlan, 27 Wash.2d 512, 178 P.2d 965, 170 A.L.R. 1138 (1947). In that the facts of the instant case demonstrate no evidence of an affirmative statement, or act, prior to the construction of the encroachment, we hold, contrary to the contention of the plaintiff, the elements of equitable estoppel have not been established.

Laches, while said to be founded on the principle of equitable estoppel, Crodle v. Dodge, 99 Wash. 121, 168 P. 986 (1917); Young v. Jones, 72 Wash. 277, 130 P. 90 (1913), is an equitable principle that in a general sense relates to neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done. Lyle v. Haskins, 24 Wash.2d 883, 168 P.2d 797 (1946); Edison Oyster Co. v. Pioneer Oyster Co., 22 Wash.2d 616, 157 P.2d 302 (1945). It also requires an intervening change of condition, making it inequitable to enforce the claim. McKnight v. Basilides, 19 Wash.2d 391, 143 P.2d 307 (1943); Anderson Estate, Inc. v. Hoffman, 171 Wash. 378, 18 P.2d 5 (1933). The doctrine is also derived from the familiar maxim that equity aids the vigilant, not those who slumber on their rights. Leschner v. Dep't of Labor and Indus., 27 Wash.2d 911, 927, 185 P.2d 113 (1947). The facts in the matter before us could perhaps be said to invoke the doctrine of laches, having in mind that more than the lapse of time must be demonstrated. Stewart v. Johnston, 30 Wash.2d 925, 195 P.2d 119 (1948). The defendants, in their conversation with Mr. Davison in 1957, were made aware of the contention that a survey encroached upon their property, and they observed the cutting of trees in the questioned area. Later, upon being advised that the property was to be sold and that they should assert their position, they delayed another five years, permitting, without comment, two intervening sales. However, laches, as well as equitable estoppel, when asserted in opposition to the interest of a landowner, must be proved by clear and convincing evidence. Strict application of such a doctrine is required when the effect is to divest men of their estate and land. See Thomas v. Harlan, supra, 27 Wash.2d at 518, 178 P.2d 965. The trial court, in assessing the circumstances and in making the ultimate inquiry into the balance of justice in sustaining or denying the defense (see Northern Pac. Ry. Co. v. Boyd, 177 F. 804 (9th Cir. 1910)), chose to avoid a specific finding of laches.

De minimis non curat lex or lex non curat de minimis or 'the de minimis rule' is not the substance of this case either. It is certain that the instant case does involve a positive invasion of the land of another, and is something more than a trifle. See 15 Am.Jur., Damages, § 6, n. 18 (1938); Thornely v. Andrews, 45 Wash. 413, 88 P....