Travis Vogue & Michelle Vogue, V. Patti Lou Gillum

• Court: Court of Appeals of Washington
• Decided: April 11, 2022
• Docket: 83467-3
• Status: Unpublished

Opinion

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

PATTI LOU GILLUM and BILLY No. 83467-3-I GILLUM, wife and husband, and the marital community composed thereof, DIVISION ONE

Appellants, UNPUBLISHED OPINION

v.

TRAVIS VOGUE and MICHELLE VOGUE, husband and wife, and the marital community composed thereof,

Respondents.

ANDRUS, A.C.J. — Patti Gillum’s mobile home straddles two lots in Ocean

Park, Washington. 1 She owns one of the lots and Travis and Michelle Vogue

purchased the other lot at a tax foreclosure in 2014 with the knowledge that

Gillum’s mobile home, the concrete pad on which it sits, and a structure enveloping

the mobile home, encumber the property. The Vogues brought an action to eject

Gillum from their property and the trial court granted injunctive relief, requiring

Gillum to remove her mobile home and related structures at her expense. It is

1Patti Gillum identified herself as trial as Patti Addams. Her counsel, however, referred to her as Patti Gillum throughout trial and on appeal. We will follow their lead and do so here.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83467-3-I/2

undisputed that removal will lead to the destruction of her home and that Gillum

lacks the financial resources to replace it.

Gillum appeals, arguing that injunctive relief is not appropriate under the

circumstances. Because the record does not support the trial court’s findings that

Gillum intentionally encroached on the adjacent lot and the trial court evaluated

the impact of any resulting encroachment through an inappropriately narrow legal

lens, we reverse.

FACTS

Before 1999, Monte and Dorothy Howell owned three adjacent lots (Lots 1,

2, and 3) in Ocean Park, Washington. Lot 1 was vacant, but a mobile home

manufactured in 1963 straddled Lots 2 and 3. That year, Patti Gillum purchased

Lots 1 and 2 and the mobile home from the Howells. Gillum did not know when

the mobile home was installed on the property, but it was in place when she moved

there in 1999. Gillum received a quit claim deed for the two lots and title to the

mobile home.

Gillum also agreed to purchase Lot 3 from the Howells for $10,000, by

making $100 installment payments each month. Although the parties stipulated to

the admissibility of Exhibit 7, identified as the real estate purchase and sale

agreement for Lot 3, the agreement in the record is not executed by the Howells.

Gillum described the agreement as “verbal.” According to Gillum, the Howells

agreed to pay the property taxes on Lot 3 until she completed the purchase.

Gillum’s sole source of income is social security disability income of $9,396

per year. At some point, Gillum ceased making installment payments for Lot 3

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because she could not afford them. She does not remember how many payments

she made or when she stopped.

Gillum’s mobile home sits on a concrete slab and has a “storm barn”

structure built around and over it. The storm barn has structural support posts set

in concrete, and a roof built of wood trusses and corrugated fiberglass. The storm

barn structure has end walls of wood and one side wall comprised of a plastic tarp.

The concrete pad and storm barn structure, in place before Gillum moved into the

mobile home, are clearly affixed to the land on both Lots 2 and 3.

The house trailer itself is in very poor shape. Gillum reported that there is

rot in the foundation and the ceiling leaks. William Berwick, the president of a

mobile home installation company, testified that he inspected the home four times

and found significant dry rot on the home’s outer rim joists and floor joists. He

described the damage as “massive rim failure” with floor joists that were “totally

deteriorated” and no longer connected to the rim joists. In Berwick’s opinion, if he

tried to lift up this trailer to move it, there would be a “significant outer wall failure.”

Berwick also noted that the screws attaching the exterior metal cladding were

rusted out and they would pop off completely if he attempted to move the trailer.

In 2007, Travis and Michelle Vogue purchased two lots (Lots 4 and 5)

directly south of Lot 3 and Gillum’s home. They bought the property to use for

camping and recreation and they and their family visit the property between four

and seven times a year from their primary residence on Camano Island. They

cleared and improved the land, installing a septic system, a well, and a pump

house.

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The Vogues’ survey shows the location of their lots in comparison to those

owned by Gillum and the Howells:

The survey also confirmed that Gillum’s home sits on Lot 3 by some 27 feet:

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In the spring of 2014, the Vogues learned that the Howells had listed Lot 3

for sale for $10,000. The Vogues considered purchasing it, but knew Gillum’s

mobile home sat partially on the lot and resolving Gillum’s right to remain there

would require them to incur litigation expenses in addition to the purchase price.

They passed on buying Lot 3 at that time.

At some point, the Howells ceased paying property taxes on the lot and the

Pacific County treasurer scheduled a foreclosure sale in December 2014. The

Vogues learned of the public sale and purchased Lot 3 at the sale for $1,315.37

on December 12, 2014. They received a tax foreclosure sale deed on January 6,

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Gillum was unaware that the Howells had stopped making tax payments

and had no notice of the county’s foreclosure sale. The Vogues did not tell her

that they knew the property was going to be sold or that they intended to bid on

the property. Gillum testified that had she learned of the foreclosure sale, she

would have borrowed money from her sister or cousin to bid on the property.

The Vogues then brought this action for ejectment and quiet title against

Gillum in March 2016. They asked the court to order Gillum to move her trailer off

of Lot 3. Gillum asked to be permitted to purchase Lot 3, or to purchase an

easement to a portion of the lot, so her home could remain. Gillum presented

expert testimony at trial that the value of a life estate in an easement for the part

of Lot 3 on which her home sat would be $3,279. The value of acquiring 623

square feet of Lot 3 to accommodate the home would be $5,000.

After a bench trial, the court found that Gillum’s home encroaches onto the

Vogues’ Lot 3 by an area of 27 feet by 20 feet. It further found that, because of

setback requirements, seasonal flooding, and wetness issues on the west side of

Lot 3, this encroachment subsumes the entire lot, rendering it unusable for any

other purpose. The court found that Gillum knew that her home partially sat on Lot

3, that there was no mistake or inadvertence as to the creation of the

encroachment, and that she allowed this encroachment to continue. The court

agreed that it was impractical to move Gillum’s home and it would not survive an

attempt to move it. But because the court found the encroachment to be

significant, it concluded that the Vogues were entitled to injunctive relief and

ordered Gillum to remove the encroachment at her expense, despite the obvious

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hardship this decision will cause her. It rejected her request to acquire some

interest in Lot 3 to avoid having to demolish her home, even though the demolition

would by necessity extend to structures resting on the lot Gillum owns in fee.

ANALYSIS

Gillum argues that the trial court erred in ordering her to remove her mobile

home and the structures built under and around that home, from the Vogues’ land

at her expense. We agree.

The parties argued this appeal under the law of encroachments, both relying

on Proctor v. Huntington, 169 Wn.2d 491, 238 P.3d 1117 (2010), and Arnold v.

Melani, 75 Wn.2d 143, 449 P.2d 800 (1968). Under these cases, our courts

recognize the traditional rule that there is a right to eject an unlawful encroachment

from one’s land because that right “is among the most precious contained within

the bundle of property rights.” Garcia v. Henley, 190 Wn.2d 539, 540, 415 P.3d

241 (2018). But the court recognized an equitable exception to this traditional rule

to “mitigate harsh or unjust results.” Proctor, 169 Wn.2d at 497. In Arnold, our

Supreme Court distilled an equitable test that allows a court to refuse to grant an

injunction in an encroachment case:

[A] mandatory injunction can be withheld as oppressive when . . . (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. The encroaching party must prove these elements by

clear and convincing evidence. Id.; Garcia, 190 Wn.2d at 540.

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The parties agree that Gillum established the fourth and fifth elements of

the Arnold test. It is undisputed that it is impractical to move the concrete pad, the

storm barn structure and the mobile home. The resulting hardship to Gillum would

be enormous, while the hardship to the Vogues is relatively minimal. The focus of

this appeal is on the first three elements of the test. Gillum challenges the factual

basis for the court’s finding that she intentionally located an encroachment on Lot

3 and the court’s decision to limit its analysis of the second and third elements to

Lot 3 in isolation, without considering the Vogues’ ownership of two adjacent lots.

(1) Is Gillum an “encroacher” who took a calculated risk or acted “willfully” or “indifferently” in leaving the concrete pad, the storm barn and the mobile home on Lot 3?

Gillum challenges the trial court’s finding under the first Arnold element that

she intentionally allowed an encroachment “to continue” on Lot 3. We agree that

the record does not support the court’s finding that Gillum was a willful or indifferent

encroacher under the first Arnold element.

An “encroachment” is “[a]n infringement of another’s rights,” or “[a]n

interference with or intrusion onto another’s property.” BLACK’S LAW DICTIONARY

667 (11th ed. 2019). An encroachment is a form of trespass. Proctor, 169 Wn.2d

at 496. We conclude the trial court erred as a matter of law in concluding that

Gillum created this encroachment or allowed it to continue.

The parties disagree as to when Gillum’s structures became an

encroachment. Gillum maintains no encroachment existed until the county sold

the property to the Vogues. The Vogues argue the encroachment existed as soon

as the Howells severed Lot 3 from Lots 1 and 2.

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We conclude Gillum was not encroaching on Lot 3 when she moved into

the mobile home because her agreement with the Howells to purchase Lot 3 gave

her the beneficial use of that property. The vendee under a real estate contract

has the right to possess the land and to exercise dominion and control of it. Bays

v. Haven, 55 Wn. App. 324, 328, 777 P.2d 562 (1989). Her structures did not

encroach on Lot 3 for as long as she had the right to use that property.

Although Gillum admits she defaulted at some point, the Howells took no

steps to eject her for years (and perhaps decades). Gillum had no knowledge that

the Howells failed to stay current on the property taxes or that the county had

scheduled a tax foreclosure sale to satisfy unpaid taxes. Gillum reasonably

believed she continued to have permission to keep her home, the concrete pad,

and the storm barn structure on Lot 3, despite her non-payment. There is no

evidence that Gillum understood the risk that the permission she had to occupy

Lot 3 could be or had been rescinded.

Gillum’s structures could not be an “encroachment” on Lot 3, in the legal

sense, until—at the earliest—the Vogues purchased the lot at the tax foreclosure

sale in late 2014 and communicated to Gillum their desire for her to move off of

the lot. It is from that point in time that one must evaluate whether Gillum acted in

bad faith or took a calculated risk that the owner of Lot 3 would not realize her

structures crossed a boundary line. The record does not support any such finding.

We question whether the record even supports the conclusion that Gillum’s

presence on Lot 3 ever became an encroachment, even after the tax foreclosure

sale. If one has the right to use a portion of another’s land, that use cannot be an

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“encroachment.” If the Howells granted Gillum the right to use that portion of Lot

3 on which the home sits, she is not an encroacher at all. An “easement” is a

property right or interest that gives its holder the limited right “to use but not

possess the owner’s land.” State v. Newcomb, 160 Wn. App. 184, 191, 246 P.3d

1286 (2011). An “implied easement” is an easement created by law after an owner

of two parcels of land uses one parcel to benefit the other to such a degree that,

upon the sale of the benefited parcel, the purchaser could reasonably expect the

use to be included in the sale. BLACK’S LAW DICTIONARY 645 (11th ed. 2019).

Washington recognizes the legal concept of an implied easement based on a prior

owner’s use of the dominant and servient estates. See 17 W ILLIAM B. STOEBUCK,

WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 2.5, at 93 (2d. ed. 2004);

Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954); Hellberg v. Coffin

Sheep Co., 66 Wn.2d 664, 667, 404 P.2d 770 (1965); Boyd v. Sunflower

Properties, LLC, 197 Wn. App. 137, 144, 389 P.3d 626 (2016). If the Howells

granted Gillum an implied easement to use that portion of Lot 3 needed to use the

mobile home, then the Arnold test would be inapplicable. But Gillum did not assert

the right to remain on Lot 3 based on an implied easement. We therefore do not

reach that issue here.

Nevertheless, substantial evidence does not support the trial court’s finding

that Gillum willfully or intentionally created an encroachment on Lot 3 or allowed it

to continue once the Vogues rescinded permission for her to use that parcel of

land. Because the record supports only one conclusion—that Gillum did not

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willfully or knowingly create this encroachment—she satisfied the first Arnold

element as a matter of law.

(2) Is the damage to the Vogues from the encroachment “slight” and the benefit of removing the encroachment equally small?

Gillum contends the trial court erred in finding that the presence of her home

on Lot 3 has caused the Vogues any more than “slight” damage. We agree.

The trial court found that the damage to the Vogues is not “slight” because

it prevents them from using the lot for any other purpose. We conclude the trial

court erred in its application of the second Arnold element.

In Proctor, the Supreme Court clearly held that “injunctions should not

mechanically follow from any encroachment.” 169 Wn.2d at 502. Whether a

particular encroachment causes damage to a landowner is not based on a rigid

formula regarding the amount of land the encroachment encumbers. Id. at 503.

The key question is “whether, in equity, it would be fair and just to require” Gillum

to remove her entire house. Id. This element of the test inherently requires the

court to view the detriment to the landowner in comparison to the detriment to an

innocent encroaching party.

Here, between 2007, when the Vogues purchased Lots 4 and 5, and 2014,

they had no interest in purchasing Lot 3. They improved their two lots with the goal

of building a vacation home at some undefined point in the future and were

contented with that plan. They admittedly chose not to buy Lot 3 when they learned

the Howells wanted $10,000 for it because they knew Gillum’s house sat on a

portion of the lot. But when they realized they might be able to purchase it for a

fraction of that amount, their calculus as to the desirability of owning Lot 3 changed.

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The Vogues nevertheless went into the purchase knowing that they would have to

initiate litigation to resolve Gillum’s right to remain on the lot.

The “damage” the Vogues incurred here is either the $1,315.37 they

invested to acquire the land, based on the calculated risk that they could force

Gillum off the property, or the value of their lost investment. Evidence at trial

established that the fair market value of Lot 3, if unencumbered, is $10,000. At

most, the damage to the Vogues is under $10,000.

As the Supreme Court stated in Proctor, the question is not whether an

encroachment is “slight” in the absolute sense. 169 Wn.2d at 503. “The question

[is] whether, in equity, it would be fair and just to require [the encroaching party] to

remove their entire house” at significant cost because of a good faith mistake. Id.

In comparison to the damages the Vogues might face, the damage to Gillum

exceeds $67,000. Berwick testified that the demolition of Gillum’s home (spanning

both Lots 2 and 3) would cost at least $15,000, and replacing the lost manufactured

home with a new home would cost in the range of $42,000, with installation costs

of another $10,000. Gillum has no resources to pay these expenses. She testified

at trial that an injunction will effectively render her homeless. We believe the trial

court abused its discretion in concluding that the damage to the Vogues is not

“slight” compared to the monetary damage Gillum faces from the injunction.

This second element of the Arnold test also requires the court to assess the

benefit of removing the encroachment. This leads to a challenging comparison of

the parties’ nontangible losses. We recognize that if Gillum’s home remains, the

Vogues will be unable to build the vacation home they now wish to build.

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But to accomplish this benefit for the Vogues, Gillum must demolish not only

structures on Lot 3 but also personal property (the mobile home) and structures

(the storm barn and concrete pad) that rest exclusively on Lot 2. She will lose the

only home she has known for over twenty years. If Gillum’s home was a house

with a market value of $300,000, rather than a trailer with little to no market value,

no reasonable court would require Gillum to demolish the home when the adjacent

landowners purchased the property for such a small sum and doing so with full

knowledge of Gillum’s decades of occupancy on the land.

We conclude the trial court erred in concluding that Gillum failed to establish

the second element of the Arnold test.

(3) If the encroachment remains, is there ample remaining room for a structure suitable for the area and no real limitation on the property’s future use?

Finally, Gillum argues the trial court erred in applying the third Arnold

element by failing to evaluate the Vogues’ ability to construct a home on their

adjacent lots. Again, we agree.

The trial court found that there is not enough room on Lot 3 to build any

other structure if Gillum’s home remains. The trial court refused to consider the

impact of the encroachment on the Vogues’ combined lots because they are

“separate parcels.” The Vogues argue that this approach is supported factually—

each parcel is taxed separately—and justified legally because the outcome of the

Arnold analysis should not depend on the identity of the landowner. They maintain

that if someone other than the Vogues had prevailed at the tax foreclosure sale,

then the court could have only considered Lot 3 in isolation, and the court did not

abuse its discretion in doing so under these circumstances.

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We cannot speculate what the outcome would have been had the purchaser

been someone other than the Vogues. Under Proctor, the test is very fact-specific.

It was the Vogues, not a hypothetical third party, who sued Gillum for ejectment.

An action for injunctive relief is equitable in nature and the trial court has broad

discretion to shape and fashion relief to fit “the particular facts, circumstances, and

equities before it.” Brown v. Voss, 105 Wn.2d 366, 372, 715 P.2d 514 (1986).

The Vogues testified that their plan had originally been to construct a

vacation home on Lots 4 and 5. Travis Vogue confirmed that there is nothing

preventing them from building on those two lots. Michelle and Travis Vogue both

testified that it would be feasible to build a small two-bedroom home on these lots

and still retain the use of the driveway, septic system, well, and other

improvements that they had already built. This evidence establishes that the

encroachment on Lot 3 does not limit the Vogues’ use of Lots 4 and 5.

The Vogues argue that even if the court had considered all three lots

combined when evaluating the third Arnold element, it still would have determined

that the encroachment substantially impairs their use of Lots 4 and 5. With the

ability to build a house on Lot 3, they contend, they can use Lots 4 and 5 for family

members to camp or engage in recreational activities. Even if true, it does not

address the fact that the Vogues had no intention of using Lots 4 and 5 in this

manner until they thought they could acquire Lot 3 for pennies on the dollar with

full knowledge of Gillum’s claim to a portion of that lot.

We conclude the record does not support the trial court’s findings as to the

first, second and third elements of the Arnold test. We conclude Gillum established

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her right to equitable relief and we remand to the trial court to fashion an

appropriate remedy.

Reversed and remanded.

WE CONCUR:

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