                                                                                                                       uR   iOF APPEALS
                                                                                                                                 0,1y 11
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                                2015 JUL - 7
                                                                                                                             Ali 8: 4 c
                                                   DIVISION II

LESTER         RILEY     and       SUSAN     K. RILEY,                             No. 46120 -0 -II
husband and wife,


                                       Appellants,


          V.




 DAVID VALAER and SUSAN E. VALAER,                                         UNPUBLISHED OPINION
 husband and wife,


                                       Resbondents.


          MELNICK, J. —       Lester and Susan Riley (Riley) appeal from the trial court' s order granting

partial summary judgment to David and Susan Valaer (Valaer) and quieting title to a disputed strip

of property. Riley argues that Valaer did not prove the elements of the common grantor doctrine
and that the trial court erred when it established the disputed strip of property' s boundary.

Alternatively, Riley argues that Valaer did not present evidence to establish the applicability of the

equitable liability rule. We agree with both of Riley' s arguments and reverse.

                                                        FACTS


          This case involves a dispute over a strip of property that is approximately nine feet long

and lies between two adjacent tax parcels. The east parcel contains a house and the west parcel is

vacant.    The disputed strip contains a portion of the attached garage of the house, a patio, and a

retaining wall. The retaining wall demarcates the approximate west edge of the disputed strip.
          In 1951, Fred      and   Alice Neth ( Neth)   purchased   the   east parcel.    On it Neth constructed a


house, patio, and retaining wall, a portion of which extended several feet over the legally described
                                            The                                 the property   line   are             visible.
property line          the                                                                                  clearly
                                                  portions               over
                onto         west parcel.                    extending
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Later in 1951, Neth purchased the west parcel. In 1971, Neth sold both parcels to Boespflug, who

in turn sold both parcels to Holman, subject to easements and restrictions of record.

          In 2000,    Riley        entered    into   a contract with      Holman to       purchase   both parcels.   In 2003,


Riley   obtained a    loan from Argent Mortgage                 Company ( Argent). As security for the loan, Riley

executed a     deed   of   trust   with power of sale       for the   east parcel "[   together with] all the improvements


now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or

hereafter   a part of      the property."            Clerk' s Papers ( CP)    at   413.    Riley retained title on the west

parcel.   In 2010, Riley defaulted on the loan, and Argent commenced a nonjudicial foreclosure.

On November 29, 2010 Valaer purchased the east parcel at a trustee' s sale. Valaer did not inspect

the property or review surveys prior to purchasing the east parcel.

PROCEDURAL HISTORY


          In 2012, Riley filed a complaint against Valaer to remove all physical encroachments on

the west parcel and to reimburse Riley for damages. Valaer moved for partial summary judgment,

arguing that the retaining wall established a new boundary line as of the date Neth sold the property

to Boespflug and that subsequent purchasers, including Riley, treated the retaining wall as the true

boundary     between the           parcels.    Valaer further argued that Riley' s damages should be limited to

the value of the disputed strip of land under the equitable liability rule.

          In support of the motion for partial summary judgment, Valaer presented copies of Riley' s

2007 application to the city to subdivide the vacant west parcel, a demolition permit, the deed of

trust from Riley to Argent, the deed conveying title to the property to Valaer, and all prior deeds
and parcel     descriptions         dating    back to 1951.       Riley' s application to subdivide the west parcel

identified the total size of the parcel as 8, 993 square feet and the subdivided lots as totaling 90 feet

in width, which accounted for the retaining wall as part of the east parcel. The demolition permit



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application identifies the east parcel as 110 feet wide and the west parcel as 90 feet wide,

acknowledging the retaining wall as part of the east parcel. Valaer also presented photographs of

the house,     patio, and       retaining   wall.   The photographs denoted the actual deed line between the

two   parcels.    Valaer declared that if the actual deed line was used, it would significantly cut into

the structure of the home. In response, Riley filed a deed history for both parcels.

          The trial court orally granted Valaer' s motion for partial summary judgment because " the

theory of the common grantor does show that there was an [ agreed] boundary line established."
Report    of   Proceedings ( RP) ( Aug.          2, 2013) at 21; CP at 693 ( Stipulated order to modify the report

of proceedings so         that the   word " aggrieved" on page         21 is   changed   to the   word " agreed.").    The


trial court ruled that Neth purchased the vacant parcel " in order to be able to legally establish that

the home       was not subject       to a divided     situation"   and adopted   the   common grantor      doctrine.   RP



 Aug.    2, 2013)    at   21.    The trial court entered a written order granting Valaer' s motion for partial

summary judgment, but it did not quiet title in Valaer.

          Riley moved for reconsideration on the grounds that Valaer did not present evidence to

satisfy the common grantor doctrine' s requirements. l The trial court denied Riley' s motion for
reconsideration.




          Valaer moved the trial court to quiet title and for clarification of the trial court' s order


granting   partial     summary judgment.             In a hearing on Valaer' s motion for clarification, the trial

court noted that " it was really an inconsistency to rule in favor of Valaer on the subject of the

location by a common grantor but to, at the same time, order the trial as to damages with respect
to that   theory."        RP ( Feb. 28, 2014)        at   11.   The trial court then ruled that because Valaer was




1 Although the trial court only granted summary judgment based on the common grantor doctrine,
Riley also moved for reconsideration on the grounds that issues of fact remained as to the
applicability     of   the   liability   rule.
46120 -0 -II




entitled to judgment based on the common grantor doctrine, it would grant the remedy associated

with    that doctrine and quiet title in Valaer.             The    trial court   additionally   stated, "[   T] he [ c] ourt had


also granted summary judgment with respect to the liability rule. And if the decision is not upheld

on    the   common grantor [     doctrine] ...     then the issue as to the liability rule has been decided as to

the   legal   right and   the   case would at      that     point   be   remanded     to be   reheard ...     on the damages


issue."      RP ( Feb. 28, 2014)    at   11- 12. The trial court entered a final written order consistent with


its oral ruling. Riley appeals.

                                                            ANALYSIS


I.          STANDARD OF REVIEW


            We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.   Jones    v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                          Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party      is   entitled   to   a   judgment     as a matter of   law."    CR 56( c).     We construe


all facts and their reasonable inferences in the light most favorable to the nomnoving party. Jones,

146 Wn.2d at 300.


            A party moving for summary judgment bears the burden of demonstrating that there is no
genuine issue of material fact. Atherton Condo. Apartment -Owners Assn Bd. of Dirs. v. Blume

Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). "                            A material fact is one upon which the


outcome of       the litigation depends in       whole or      in   part."   Atherton, 115 Wn.2d at 516. If the moving


party satisfies its burden, the nonmoving party must present evidence demonstrating that a material




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46120 -0 -II



fact   remains    in dispute. Atherton, 115 Wn. 2d          at   516.       If the nonmoving party fails to do so, and

reasonable persons could reach but one conclusion from all the evidence, then summary judgment

is    proper.    Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805

 2005).


II.        COMMON GRANTOR DOCTRINE


           The   common grantor         doctrine is   briefly   described      as   follows: " A grantor who owns land


on both sides of a line he has established as the common boundary is bound by that line. The line

will also be binding on grantees if the land was sold and purchased with reference to the line, and

there was a meeting of the minds as to the identical tract of land to be transferred by the sale."
Winans     v.   Ross, 35 Wn.     App.    238, 240, 666 P. 2d 908 ( 1983) (           citations omitted).




           The common grantor doctrine is premised on a special relationship between the original

grantee and the common grantor, wherein the common grantor had unilateral authority to

determine the location of the property boundary. Levien v. Fiala, 79 Wn. App. 294, 302, 902 P. 2d

170 ( 1995);      see   Strom   v.   Arcorace, 27 Wn.2d 478, 481, 178 P. 2d 959 ( 1947); Thompson v. Bain,


28 Wn.2d 590, 592- 93, 183 P. 2d 785 ( 1947).                        This special relationship is not found in other

boundary adjustment doctrines and justifies the presumption that the grantor's line is the boundary
line    mentioned       in the deed, immediately       binding       as   to the   grantee.   See Clausing v. Kassner, 60

Wn.2d 12, 15, 371 P. 2d 633 ( 1962);            Strom, 27 Wn.2d at 481; Levien, 79 Wn. App. at 302.

           Subsequent purchasers are bound to the grantor's line if they purchase the property with

actual or inquiry notice that it is the boundary. Atwell v. Olson, 30 Wn.2d 179, 183- 84, 190 P. 2d
783 ( 1948);      see Strom, 27 Wn.2d at 481; Windsor v. Bourcier, 21 Wn.2d 313, 315- 16, 150 P. 2d

717 ( 1944).




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46120 -0 -II




         A practical location made by the common grantor of the division line between the
        tracts granted is binding on the grantees who take with reference to that boundary.
        The line established in that manner is presumably the line mentioned in the deed,
        and no lapse of time is necessary to establish such location, which does not rest on
        acquiescence in an erroneous boundary, but on the fact that the true location was
        made,        and       the   conveyance        in    reference        to it.    However, for a boundary line
        established by a common grantor to become binding and conclusive on grantees it
        must plainly appear that the land was sold and purchased with reference to such
        line, and that there was a meeting of minds as to the identical tract of land to be
        transferred by the sale."

Strom, 27 Wn.2d           at   481 ( quoting 11 C. J. S. Boundaries § 77, at 651 ( 1938)).


        Washington             courts   have    reduced       the   common grantor           doctrine to two      questions: (   1) did a


common grantor and original grantee establish an agreed boundary, and ( 2) if so, would a visual

inspection of the property indicate to subsequent purchasers that the deed line was no longer

functioning     as   the " true"        boundary? Winans, 35 Wn. App. at 241; Fralick v. Clark County, 22

Wn.   App.     156, 160, 589 P. 2d 273 ( 1978). A formal agreement is not required; rather, the parties'


                                             after   the   sale         show agreement or          meeting   of   the   minds.   Winans,
manifestations of         ownership                               may


35 Wn.    App.       at   241.       The party asserting a boundary by common grantor has the burden of

establishing these elements by clear and convincing evidence.2




2 No Washington decision has explicitly declared the plaintiffs burden under the common grantor
doctrine. However,              related      doctrines      require proof        by    clear and   convincing     evidence.See, e. g.,
Thomas    v.   Harlan, 27 Wn.2d 512, 518, 178 P. 2d 965.( 1947) ("                                 Title to real property is a most
valuable right which will not be disturbed by estoppel unless the evidence is clear and
convincing."); Merriman                 v.   Cokeley,       168 Wn.2d 627, 630, 230 P. 3d 162 ( 2010) ( Acquiescence
                                                be                                                                 evidence.);    accord
and   mutual        recognition       must            proved      by    clear,   cogent,    and    convincing
Keierleber     v.   Botting, 77       Wn.2d 711, 715, 466 P. 2d 141 ( 1970) ( Reformation                         of a deed conveying
a property interest for mutual mistake requires proof by clear, cogent, and convincing evidence.).
The common grantor doctrine is similar in kind to these doctrines; the rationale that boundary
adjustments require this higher quantum of evidence is equally applicable to it.



                                                                         C,
46120 -0 -II




          Riley argues that Valaer did not present evidence to satisfy the requirements of the common

grantor    doctrine.   Br.   of   Appellant   at   7.    Specifically, Riley argues that Valaer did not present

sufficient evidence of any agreed boundary .line between any common grantor and any original

grantee. We agree.


          A.      Neth as Common Grantor


          Riley first argues that the record does not contain evidence to establish an agreement

between Neth as a common grantor and Boespflug as an original grantee.

We agree.


          The undisputed evidence is that Neth purchased the east parcel and then constructed a


house, patio, and retaining wall. These structures intruded on the west parcel that Neth purchased

in 1951.    Neth then   sold      both   parcels   to   Boespflug in   1971.   For approximately sixty years, until

2003 when Riley granted a deed of trust with power of sale on the east parcel to Argent, the two

parcels always were conveyed simultaneously to one party. Although Neth could have determined

the location of the boundary line between the parcels, a genuine issue of material fact remains as

to whether Neth sold the parcels and Boespflug purchased them with reference to an agreed new

boundary line. The record contains only the real estate contract between Neth and Boespflug that
identifies each parcel with the original boundaries as described in the records of Clark County.

Viewed in the light most favorable to Riley, the record contains no evidence that Neth or Boespflug

treated the retaining wall as the true boundary between the parcels or that they agreed it was the
new   boundary.' Therefore, because there is a genuine issue of material fact as to this element of

the common grantor ,doctrine, Neth cannot be deemed a common grantor.




  From a practical standpoint, there was no need to establish a new boundary because, until 2003,
the new owners always owned both parcels.




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    46120 -0 -II



               B.        Riley as Common Grantor
L




               Riley next argues that the record does not contain evidence to establish an agreement

    between Riley as a common grantor and Argent as an original grantee. We agree.

               Although, the evidence shows that Riley considered the retaining wall to be the boundary

    line between the east and west parcels, 4 a genuine issue of material fact exists as to whether Riley

    and Argent established the retaining wall as an agreed boundary when Riley conveyed the east

    parcel     to Argent      in 2003.     For the first time since 1951, the single party that owned both parcels

    conveyed an interest in only one of them. The record contains the deed of trust between Riley and

    Argent, in which Riley gave the east parcel as security for Argent' s loan. It included the east parcel

      together with] all the improvements now or hereafter erected on the property, and all easements,

    appurtenances, and          fixtures   now or     hereafter    a   part   of   the property."    CP   at   413. The deed of trust


    identified the      east parcel      by   legal description: " Parcel ID Number 001210230," which currently


    has the     address of     401 West 36th Street, Vancouver, Washington 98660.                          CP at 413.


               Argent accepted the deed of trust, but the record does not contain any evidence that Argent

                                         the retaining                                the   west    boundary.       It also does not
    agreed      with    Riley    that                       wall   constituted




    demonstrate.that Argent knew of or relied on Riley' s attempted short plat, application to subdivide

    the west parcel submitted to the city, or demolition permit application, in which Riley treated the

    retaining       wall as   the   boundary    of   the   east parcel.       The record also does not contain any evidence

    that Valaer relied on or knew of Riley' s applications to the city at the time Valaer purchased it at

    foreclosure.




    4 In Riley' s application to subdivide the west parcel identified the total size of the west parcel and
    the size of the proposed subdivided lots accounting for the retaining wall as part of the east parcel.
    Riley further submitted these same dimensions with the demolition permit application,
    acknowledging that the now disputed strip of land, including the retaining wall, would remain part
    of   the   east parcel.
46120 -0 -II



        We note that the record does not contain an appraisal of the property Argent took as security

in   exchange      for the loan.       Although   Riley   mentions    that "   Argent had an appraisal done and


obtained   title   insurance before      escrow closed on     the   refinance,"   neither the appraisal nor the title


insurance are attached as exhibits or are otherwise contained in the record. CP at 320. We further

note that the record also does not contain a title report. Although the record contains the first page

of a title commitment for Argent' s servicing company, it merely refers to the property by its legal

description, "     Lot 1, Block 3, SUNSET VIEW ADDITION TO THE CITY OF VANCOUVER,

according to the plat thereof, recorded in Book `D' of plats, page 101, records of Clark County,
Washington."         CP.   at   361.   When viewed in the light most favorable to Riley, genuine issues of

material fact exist regarding the information Argent had when it took the east parcel as security

for its loan and whether Argent and Riley agreed to the retaining wall as a new boundary. Thus, a

genuine issue of material fact exists as to this element of the common grantor doctrine and the trial

court erred by granting Valaer summary judgment.

III.     LIABILITY RULE


         Riley argues that genuine issues of material fact exist as to the applicability of the liability
rule.   We     agree.   Although the trial court' s final written order quieted title in Valaer under the

common grantor doctrine only, the trial court noted in the reconsideration hearing that it had

alternatively      granted partial      summary judgment to Valaer             under   the    liability   rule.   Generally,

Washington courts will order an encroacher to remove encroaching structures. Arnold v. Melani,

75 Wn. 2d 143, 152, 437 P. 2d 908 ( 1968).                However, where such an order would be oppressive,

Washington         courts recognize an exception.         Arnold, 75 Wn.2d        at   152.    To trigger the exception


under the Arnold test, the encroacher must prove by clear and convincing evidence that




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46120 -0 -II




          1) he did not simply take a calculated risk or act in bad faith, or act negligently,
                                                                 structure; ( 2) the damage to
         willfully, or indifferently in locating the encroaching
         the landowner is slight and the benefit of removal equally small; ( 3) there is ample

         remaining room for a structure suitable for the area and there is no real limitation
         on    the property' s   future   use; (   4) it is impractical to move the encroaching structure
         as built; and ( 5) there is an enormous disparity in the resulting hardships.

Proctor   v.   Huntington, 146 Wn.         App.     836, 847, 192 P. 3d 958 ( 2008) (             citing Arnold, 75 Wn.2d at

152),   affd,   169 Wn.2d 491, 238 P. 3d 1117 ( 2010). If all the elements are satisfied, the trial court


may adjust the boundary of the disputed property. Proctor, 146 Wn. App. at 851.
         The first     element     of   the Arnold test       requires       clear    and   convincing       proof   that "[ t] he



encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or

                  locate the encroaching                               75 Wn.2d      at   152.    Viewed in the light most
indifferently                                       structure."




favorable to                        issues                   fact      exist as   to this first   element.    The record does
                 Riley,   genuine             of material



not   demonstrate that Valaer        acted with       due diligence       when     purchasing the property.          Valaer did


not inspect the property or review surveys prior to purchasing the east parcel at the trustee' s sale.

The record is void of facts to establish that Valaer did not simply take a calculated risk or act

negligently in      locating   the encroaching         structure.      Thus, the trial court erred by granting Valaer

summary judgment.

          Because the first element of the Arnold test is not satisfied, we do not reach the remaining

elements.




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46120 -0 -II



        We reverse.


        A majority of the panel. having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




                                                          V. — 7Oov
                                                                       a

                                                                      t —
                                                              J
                                                             Melnicic, J.


We concur:




        W orswick, J.




eanson,             C. J.




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