t only to attempt to justify its misguided Robin Hood theory under the second requirement.
See majority at 503 n. 9.
¶53 The third requirement makes sense when we address minor encroachments; Proctor would not have any real limitations on using his property if he lost a few feet of that elevated land. His inability to hike, camp, or build part of a structure on those few feet would be of little consequence. It would be no real limitation if, for example, Proctor's hike to that boundary of his property was cut eight inches short.
¶54 But now that the majority has stretched permissible encroachments to an entire acre, the third requirement just doesn't fit. It is a "real limitation" on the future use of property if the encroachment occupies a piece of property so large that Proctor loses the potential site for an entire homestead — in an area where not all property is fit for building a home. And the limitations are not simply on development. Proctor is unable to hike an additional acre of his property to enjoy the lookout that acre affords. He is unable to camp there, hunt there, or use the entire acre of land for any other activity he might enjoy.
¶55 The third requirement is awkward to apply here because the loss of an entire acre of land should have already been weeded out by the second Arnold requirement. In any event a similar analysis under the second requirement makes it equally obvious that Proctor has a real limitation placed upon his property's future use when he loses an entire acre of land suitable for development or to be enjoyed in its natural state.
Conclusion
¶56 Arnold wrote a narrow exception to Washington's historically ironclad protection of private property rights. Arnold was never a grant of unbridled equity; it was not created as some sort of supercharged judicial eminent domain where courts can transfer property rights from one private citizen to another based upon the court's determination of which party wants or needs it more. A court's authority to judicially take private property from the lawful landowner for the benefit of an encroacher severely erodes the concept of private property rights — and the Arnold court knew it. The bar for an encroacher to obtain land through equity is therefore high: the encroacher must prove, by clear and convincing evidence, each of the five Arnold requirements. An encroacher demonstrating he or she will suffer an enormous hardship if ejected speaks to only one of those requirements.
¶57 Or, so it was. The majority extends the balance of equities to all the Arnold requirements; this misreading of Arnold is tantamount to overruling it. And I do not envy the trial courts that will have to apply the majority opinion — the "new Arnold." Whereas Arnold provided five clear, independent requirements, the majority has chopped up those requirements and boiled them together into an indistinguishable equity-sludge — and, to mix metaphors, has knocked down wall upon wall of private property protections in the process.
¶58 The moral of this story should be: before you build, especially near a property line, get a survey.
¶59 Because the majority effectively overrules Arnold, dissolving Arnold's strong protection of private property rights, I dissent.
MADSEN, C.J., and ALEXANDER and J.M. JOHNSON, JJ., concur with SANDERS, J.