Proctor v. Huntington

• Decision Date: 23 September 2008
• Docket Number: No. 36087-0-II.,36087-0-II.
• Citation: 146 Wn. App. 836,192 P.3d 958
• Court: Washington Court of Appeals
• Parties: Noel PROCTOR, Appellant/Cross Respondent, v. Robert "Ford" HUNTINGTON and Christina Huntington, husband and wife and the marital community therein, Respondents/Cross Appellants.

192 P.3d 958

146 Wn. App. 836

Noel PROCTOR, Appellant/Cross Respondent, v. Robert "Ford" HUNTINGTON and Christina Huntington, husband and wife and the marital community therein, Respondents/Cross Appellants.

No. 36087-0-II.

Court of Appeals of Washington, Division 2.

September 23, 2008.

Philip Albert Talmadge, Talmadge Fitzpatrick, Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, Tukwila, WA, Ross Roland Rakow, Attorney at Law, Goldendale, WA, for Appellant/Cross Respondent.

Bradley W. Andersen, Attorney at Law, Phillip Justin Haberthur, Schwabe Williamson & Wyatt, Vancouver, WA, for Respondents/Cross Appellants.

ARMSTRONG, J.

¶ 1 In 1994 and 1995, Robert and Christina Huntington and Noel Proctor bought adjacent multi-acre parcels of undeveloped land on which they constructed homes. In 2004, they discovered that the Huntingtons' home and other improvements, which take up nearly an acre, are entirely on Proctor's property because of a misunderstanding regarding the boundary marker on the north side of their properties. Proctor sued to eject the Huntingtons and to require them to remove the improvements. He also revoked permission he had given the Huntingtons to construct and use a driveway over his property. The Huntingtons counterclaimed (1) to quiet title in themselves under adverse possession and estoppel in pais theories and (2) for an easement to the driveway. Although the trial court ruled that the Huntingtons had not proved adverse possession or estoppel in pais, it denied Proctor an injunction to remove them. Instead, it ordered the Huntingtons to pay Proctor $25,000 in exchange for a boundary adjustment giving them title to the acre on which their improvements stood. The trial court also concluded that the Huntingtons had held a revocable license, not an easement, to the driveway, and ordered them to cease using it.

¶ 2 Proctor appeals the trial court's forced sale remedy and its admission of certain expert testimony. The Huntingtons cross appeal the trial court's denial of their claims for estoppel in pais and for the easement to the driveway. We affirm.

FACTS

¶ 3 This case concerns a disputed boundary line between two large properties in Skamania County. Both lots were originally owned by Dusty Moss, who sold the eastern lot to Robert and Christina Huntington and the western lot to Noel Proctor. At the time, both lots were undeveloped.

¶ 4 Before Robert¹ bought his property in January 1994, Moss walked him through it and showed him the property lines generally. The northern boundary was marked by a metal fence, and Moss showed Robert a fence post on that fence that marked the northwest corner of his parcel. Six months after purchasing the property, Robert set up a campsite on what he thought was his property but was actually part of the 30-acre parcel that Proctor later purchased. The Huntingtons lived in that campsite during the summer of 1994, but they were absent from September 1994 to April 1995. Meanwhile, Proctor purchased the 30-acre parcel in February 1995, after having been shown the same general boundaries by Moss. After the Huntingtons moved back to their campsite in April 1995, Proctor introduced himself to them, not realizing that they were on his property.

¶ 5 The Huntingtons chose a site on which to build a home that summer, and they needed an access road over Proctor's property. Robert testified that he asked Proctor for permission to build a permanent driveway across Proctor's land as an offshoot from the access road. Proctor gave his permission to build the road on the condition that Robert construct a gate and share the costs of maintaining the shared part of the road. But he testified that he thought the road was to be temporary while the Huntingtons built their home; the property already had another driveway that he thought they would use as their permanent driveway. The Huntingtons believed that the agreement was for a permanent road or easement but they did not ask for a written easement at the time. In later years, they repeatedly asked Proctor for a written easement, but Proctor refused.

¶ 6 Robert testified that before he started building the road, he wanted to verify how much of it would be on Proctor's property and how much would be on his. He testified that by chance, he encountered Dennis Peoples, the surveyor for the region, along the northern boundary of the property. Robert asked Peoples to confirm the northwest corner of his property, and Peoples mistakenly pointed out a marker, now referred to as the "16th pin," that is about 400 feet west of the true boundary.² Report of Proceedings (RP) at 212. Robert also testified that he showed Proctor the 16th pin and told him that Peoples had confirmed it as the boundary marker between their properties.³ Reassured that their desired homesite was on their property, the Huntingtons built the driveway as well as a house, well, garage, and garden.

¶ 7 In spring 2004, Proctor hired a different surveyor, Richard Bell, to locate the corners of his property because he was concerned about a possible encroachment by a different neighbor. After completing the survey, Bell discovered that the Huntingtons' house, well, garage, yard, and driveway were located entirely on Proctor's property. Proctor sent the Huntingtons a letter withdrawing his permission for them to use their driveway, then brought this action for timber trespass, quiet title, ejectment, and a restraining order against trespass by the Huntingtons. The Huntingtons counterclaimed to quiet title to the disputed area and for an easement for their driveway.

¶ 8 During trial, Proctor moved to exclude the testimony of the Huntingtons' two expert witnesses regarding the costs and difficulty of removing the Huntingtons' improvements from the land and returning the land to its previous condition. The trial court denied the motion, ruling that the testimony might help it fashion an equitable remedy.

¶ 9 The trial court ruled that Proctor gave the Huntingtons an oral license, not an easement, to build and use the driveway across his property. As such, Proctor had a right, at anytime, to withdraw his permission. It ordered the Huntingtons to cease using the driveway before June 1, 2007, a deadline that would give them sufficient time to construct a new driveway across their own property.

¶ 10 The trial court also rejected the Huntingtons' estoppel in pais claim, ruling that they had failed to prove the elements by clear and convincing evidence. As such, their improvements were on Proctor's property.⁴ But the trial court denied Proctor's requests for a mandatory injunction, ejectment, and damages for trespass. It concluded that requiring the Huntingtons to move their home and other improvements to another location would be oppressive, unduly costly and inequitable because:

1) The Huntingtons did not act in bad faith, negligently or willfully, when they chose to build their home on a location that was later discovered to be on Mr. Proctor's property;

2) the Huntingtons acted reasonably and in good faith when they ascertained the boundaries of their property;

3) the damage to Mr. Proctor is slight and the benefit of removing the house is equally small;

4) there are no real limitations on Mr. Proctor's future use of his property in permitting the Huntingtons to retain their home in its current location;

5) it would be impractical and unduly expensive to remove the structure; and

6) there would be an enormous disparity in resulting hardships if the Huntingtons were required to move their home.

Clerk's Papers (CP) at 229.

¶ 11 The trial court ordered the Huntingtons to pay Proctor $25,000⁵ for an adjustment of the boundary line, giving the Huntingtons the acre on which their house, garage, yard, and well were located. It also ordered that the parcel be configured, if possible, to include a new driveway approach for the Huntingtons' homesite. Both parties appeal.

¶ 12 The principal issues on appeal are whether the trial court erred in finding that the Huntingtons failed to prove estoppel in pais by clear and convincing evidence and in fashioning a remedy that forced Proctor to sell the disputed land to the Huntingtons.

ANALYSIS

¶ 13 We review a trial court's findings of fact for substantial supporting evidence in the record. If the evidence supports the findings, we then consider whether the findings support the court's conclusions of law. See Landmark Dev., Inc. v. City of Roy, 138 Wash.2d 561, 573, 980 P.2d 1234 (1999). Substantial evidence is a quantum of evidence sufficient to persuade a rational fair-minded person that the premise is true. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 879-80, 73 P.3d 369 (2003). If this standard is met, we will not substitute our judgment for that of the trial court. Sunnyside Valley Irrigation Dist., 149 Wash.2d at 879-80, 73 P.3d 369. We review the trial court's legal conclusions de novo. Sunnyside Valley Irrigation Dist., 149 Wash.2d at 880, 73 P.3d 369.

¶ 14 We first consider the Huntingtons' cross appeal of the trial court's conclusion that they failed to prove estoppel in pais by clear and convincing evidence.

I. ESTOPPEL IN PAIS

¶ 15 Estoppel in pais requires the claimant to prove that (1) the owner made an admission, statement, or act inconsistent with a claim afterwards asserted, (2) the other party acted on the faith of such admission, and (3) allowing the owner to contradict or repudiate his admission, statement, or act would result in injury to the other party. Thomas v. Harlan, 27 Wash.2d 512, 518, 178 P.2d 965 (1947). Because this doctrine estops an owner from asserting legal title to real property, we require proof by "`very clear and cogent evidence.'" Sorenson v. Pyeatt, 158 Wash.2d 523, 539, 146 P.3d 1172 (2006) (quoting Tyree v. Gosa, 11 Wash.2d 572, 578, 119 P.2d 926 (1941)).

¶ 16 The Huntingtons base their claim on the meeting that they asserted occurred between Robert and Proctor at...