§8.3 - Encroachment and Trespass
Jurisdiction | Washington |
§8.3 ENROACHMENT AND TRESPASS
The purpose of this section is to discuss, in brief fashion, some of the general principles and approaches applicable to conflicts that arise between the owners of adjoining or related land. No attempt has been made to provide or set forth definitive treatment of certain specific problems that are, at times, characterized as involving "encroachment." Thus, the reader concerned with matters relating to, for example, adverse possession, support, partition, and boundaries, should consult those sections of this deskbook that deal with those matters in greater depth. See also §§8.1 and 8.2, above.
(1) General considerations
As a general matter, any invasion of a landowner's real property is an unlawful encroachment. For example, the fact that tree branches or shrubs protrude over a property line gives the owner of the adjoining property the right to have the overhanging portion of the tree or shrub removed. In Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921), the court stated that, in the absence of a nuisance statute, the sole remedy of a landowner is to cut down the offensive branches. The court held that the predecessor to RCW 7.48.010 provided for an abatement of overhanging branches because they caused annoyance or damage, even though "insignificant." RCW 7.48.020 provides that the successful party is entitled to have an order requiring the sheriff to abate the nuisance. The area protected from invasion includes the airspace above and the earth below a landowner's property. Gostina, 116 Wash. at 232.
The relative insignificance of an encroachment is not always a determining factor with regard to whether removal should be ordered. In First Methodist Episcopal Church v. Barr, 123 Wash. 425, 212 P. 546 (1923), overruled in part by Cameron v. Perkins, 76 Wn.2d 7, 454 P.2d 834 (1969), the court held that footings and hangers that were part of a structure that had been a party wall were a nuisance and had to be removed. The agreement under which the party wall had been constructed had been rescinded, so that there was no contractual right for the wall to invade the neighboring property. See also Scott v. Benevolent & Protective Order of Elks, 136 Wash. 39, 238 P. 902 (1925).
(2) Injunctive relief: balancing the equities
In early Washington cases, courts appeared to hold that a mandatory injunction would be granted to remove an encroachment, irrespective of the extent of the burden on the parties or the good faith of the encroaching party. It is now clear, however, that a court may withhold an injunction, leaving damages as the sole remedy, if the harm from granting the injunction is disproportionate to the benefit to the party seeking the injunction and if the encroachment is not the result of bad faith, negligence, or mere chance. This refusal to grant an injunction when justice would otherwise appear to require one has been referred to as "balancing the equities."
Tyree v. Gosa, 11 Wn.2d 572, is an example of the strict rules protecting property. The defendant, Pope & Talbot, had sold land to the two individual defendants. The complaint alleged that the defendants' buildings were, in fact, situated upon the plaintiff's land. Defendants answered that they had relied upon a Pope & Talbot survey. That survey was incorrect: one house was entirely on the plaintiff's land and part of the other house was on plaintiff's land. The trial court, on the theory that it was balancing the equities, allowed the defendants to purchase the plaintiff's land, because any other result would cast a heavy burden on the defendants while imposing little loss on the plaintiff. The Supreme Court...
To continue reading
Request your trial