gray-large.pngRoy v. Cunningham, 46.Wn.App.409, 731 P.2d 526 (1986.12.30) – [Cause No: 7208-8-III] – upholds the Yakima County Superior Court – [Case No: 83 2-01530-7] liability trial decision of Judge Jo Anne Alumbagh in favor of adverse possessors, Plaintiffs Roy, et al, yet remanded for redetermination damages for which title holder, Defendants Cunningham, et al, were to be liable.



  • Land Type: Agricultural
  • Water Feature: Not Specified
  • Taxes Paid by AP: Not Specified

Chain of Title:

  • TH – Isreal – Lot 1: Unspecified other than Allen Isreal, Trustee of Cunningham Childrens.
  • TH – Cunningham – Lot 2: Unspecified except as contract purchasers including 2 marital communities existing “after September 15, 1982” – the date of their portion of second portion of fence removal. (p. 411).
  • TH – Meyers – Lots 3 & 4: Unspecified except Robert & Sandra’s marital community in existence “in August 1980” – the month of the initial portion of fence removal. Id.
  • AP – Roy: Mr. Mondor owned the land for 14 to 16 years before the 1974 sale to Mr. Agnew who was Roys’ immediate predecessor selling the eastern property which adjoined the other four lots to Roy under contract in 1977. (p. 413).

Identified Boundaries: The title line of eastern lots 1 – 4 had a fence which “for at least 20 years prior to its [1980 (Robert Meyers) and subsequently the 1982 (Cunninghams)] removal represented and was used as a “well marked and defined boundary between the real property lying west and east of said fence.” (p. 412).


“Whether the trial court erred in dismissing te Meyers’ claim for tortious interference with business expectancies [by this lawsuit which disrupted their intended sale of lot 2 to the Cunninghams].” (p. 416).


Tortious Interference’s Elements: “The elements of tortious interference [of business expectancy] claim Include: (1) existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy by the alleged interfering party; (3) intentional interference inducing or causing breach or termination of the relationship or expectancy; and (4) resultant damage. Sea-Pac Co. V. United Food & Comm’l Workers, Local 44, 103 Wn.2d 800, 805, 699 P.2d 217 (1985)(citing Calbom v. Knudtzon, 65 Wm.2d 157, 162-63, 396 P.2d 148 (1964)).” (p. 416).

Legally Protected Interest Asserted in Good Faith are Valid: “Even if a prima facie case is made, one who in good faith asserts a legally protected interest of his own that he believes may be impaired by the performance of a contract between others is not guilty of tortious interference. Dauphin v. Smith, 42 Wn.App 491, 495, 713 P.2d 116 (1986).


Majority Opinion: McInturff, J.

“Robert Meyers testified that after he replaced the fence, Ted and Les Roy voiced their disapproval, threatening to bring suit as well as “cause problems” with Mr. Meyers’ plans to convey his business property. However, given the possessory claim asserted by the Roys in the disputed property being conveyed, the trial court properly dismissed the claim for tortious interference.” (pp. 416-17).

Concurring Judges: Green, C.J. and Munson, J.

Justice Smiles’ Thoughts:

The claim of Tortious Interference of Business Expectancy is here composed of two rules: one for its elements and an exception for exercise of ones “legally protected rights” if done with the “belief” of being asserted in “good faith”.

Wouldn’t it have been easier if the third element of the general rule required “wrongful” instead of “intentional” tortious inducement or cause of harm? The rule construction as it is, instead allows a very broad exception based on the triple extension of again … a (1) “good faith” assertion of a claim (2) “believed” to be (3) “legally protected.” That’s a heck of a lot of hedging. It also looks at subjective belief – just as permission does – but which the Washington Supreme Court stopped by its ruling in Chaplin v. Sanders.

Effectively, tortious interference of business expectancy matches up to a Rule 11 violation. Both have an incredible degree of latitude. While this claim might effectively be raised when one has contracted and paid to build a fence or otherwise landscape an area which the contracting party had not contemplated as being in dispute. Yet, doesn’t the very fact that a boundary dispute exists indicate there isn’t a “meeting of the minds” between neighbors. Notably, if that is the inquiry, then the second question to ask is … when?

The time when a claim of tortious interference of business expectancy is most often claimed is when the stakes are sufficiently high and there is the suspicion that one has timed ones’ claim to “undue” advantage in order to generate additional leverage. That time is when a house comes on the market.

The result of this leverage if exerted by the title holder may be to quickly extract a quit claim deed. Whereas exertion of this leverage, if performed by an adverse possession claimant often most easily results in an easement.

Regardless, is there anything wrong with seeking to clean up ones boundaries with neighbors who are soon to leave so as to create a “new normal” with new neighbors? Conversely, why would anyone want to wait until after the sale to do this? Perhaps the best answer to this comes down to an analysis what is more valuable neighborly relations with a new neighbor or ability to better prove one’s claim – if what you are dealing with now is the neighbor from hell.

Perhaps allowing the neighbor from hell to march on off to the sunset without engaging them and hoping to work out something with an incoming neighbor is more reasonable. Yet, in the main its probably best to just get the issue cleaned up before anyone new gets their heart set on the extra bit of land.

Moral of the story: Unless there is absolutely no chance for a victory [or your want to make it as easy for the existing “Neighbor from Hell” to leave]; you know there is already a contract in place; and you know by bringing action against your neighbor, you will cause the contract to be scuttled — isn’t it best to seek to sort out a boundary dispute with a departing neighbor?

Though it seems unfair – and in some cases it actually is because the y staying put does overreach – isn’t it more fair to seek a clear run at resolution now, instead of moving forward later at a time when both the parties have “all the time in the world” to try to eviscerate eachother?

In other words, sometimes simply having a clean shot at resolution – even if it is not the most balanced – is better than an extended fight for one which is.gray-small.png