The Washington Supreme Court ruled Thursday in Proctor v. Huntington, a case of property rights. Justice Richard Sanders, who is in a tough race for reelection in November, wrote the dissent and was joined by Justices Barbara Madsen, Gerry Alexander and Jim Johnson.

Proctor and Huntington are neighbors in Skamania County, which is on the Columbia Gorge. Proctor has 30 acres, Huntington, 27. Because of a surveyor’s mistake, in the 1990s Huntington built his house on Proctor’s land. Proctor found out several years later and demanded that Huntington pick up and leave. The question: Does Huntington have to move his house?

In a 5-4 ruling, the Court said no: Huntington should pay Proctor $25,000 for the acre of land and call it even. The ruling, written by Justice Debra Stephens (a recent Gregoire appointee), based this on several cases in which someone built an edge of a building over the line, or the roof was over the line, etc. She wrote:

We recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach. Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing.

This stuck in Sanders’ craw. This wasn't the edge of a building, but the whole thing, plus a garage and a well. He wrote:

The majority's approach is also inconsistent with the nature of private property. A fundamental aspect of private property is the landowner's right to choose if he or she will sell the property and, if so, for how much. The majority cannot simply stroll through Sherwood Forest, redistribute property, and say any harm is slight if the victims are paid what the court determines is fair market value. If Proctor really valued his property only at the market value, he would have sold it already.

Sanders ended his dissent with the words:

The moral of this story should be: before you build, especially near a property line, get a survey.

P.S. One of the attorneys for Proctor, the encroached-upon owner, is Phil Talmadge, a former colleague of Sanders on the Court. Back in the 90s, Talmadge was Sanders' nemesis, arguing that Sanders took property rights too far. Here Talmadge is in private practice, and is defending a landowner.