Brown v. McAnally
| Citation | 97 Wn.2d 360,644 P.2d 1153 |
| Decision Date | 13 May 1982 |
| Docket Number | No. 48031-1,48031-1 |
| Court | United States State Supreme Court of Washington |
| Parties | Donald M. BROWN & Colista A. Brown, husband & wife, Respondents, v. Dan McANALLY, a single person, Wayne Worby & Louise Ann Worby, husband & wife, the Federal Land Bank of Spokane, Warren W. Pooler & Mary Pooler, husband& wife, Marshall F. Willet & Jane Doe Willet, husband & wife, Gary I. Storch& Donna L. Storch, husband & wife, Jerry Lewis & Virginia E. Lewis, husband & wife, Duane Oberlander & Doris J. Oberlander, husband & wife, and R. D. Lowe & Jane Doe Lowe, husband & wife, Calvin Clark & Ann Clark, husband & wife, Douglas A. Brown & Deborah Brown, husband & wife, Richard Roetcisoender & Jane Doe Roetcisoender, husband& wife, the Brown-Taylor Water Company, a Washington non-profit corporation, Pacific Power & Light Company, a Maine corporation, Ellensburg Telephone Company, a Washington corporation, G. Howard Thompson, if living, and if deceased the unknown heirs of G. Howard Thompson, and any other persons or parties unknown claiming any right, title, estate, lien or interest in the real property described in this petition, Appellants, Yakima County, a municipal corporation and Community Savings & Loan Association. |
Velikanje, Moore & Shore, John S. Moore, Jr., Yakima, for appellants.
Walters, Whitaker, Finney & Falk, Ronald F. Whitaker, Louis D. Fessler, Yakima, for respondents.
The trial court granted respondents, Donald and Colista Brown, a 50-foot private way of necessity over appellants' land and ruled that such easement and accompanying rights could thereafter be conveyed to the County for use as a public county road. We reverse the trial court and remand the cause for new trial.
Respondents own 28.9 acres of land in Yakima County which they desire to have platted into 44 residential lots. At present, however, the property is landlocked. The nearest public way is a county road known as Lookout Point Road which runs generally north and south. A narrow dirt and gravel way, known as Brown Road, intersects Lookout Point Road at a point approximately one-half mile easterly of respondents' land. Brown Road runs westerly from Lookout Point Road for approximately one-half mile to its terminus slightly north and east of respondents' property. Respondents have access to Brown Road by means of a 60-foot nonexclusive easement across land which abuts both respondents' land and Brown Road.
Brown Road, which varies from 15 to 20 feet in width, serves approximately 14 to 15 families who either live along the road or to the west of it. The east one-fourth mile of the road traverses property owned by Mr. and Mrs. Marvin Sunquist who are not parties to this action. The west one-fourth mile traverses property owned by appellants McAnally, Worby, Storch and Oberlander. All have easements of record over Brown Road for ingress to and egress from their respective properties to Lookout Point Road. Up to the present time respondents have made little use of Brown Road because they have resided in California. Aside from a possible permissive user of Brown Road, however, respondents' acreage has no recorded access to Lookout Point Road. Thus, respondents assert, their property is legally landlocked. 1
In furtherance of their plan to subdivide the 28.9 acres into residential lots, respondents submitted a proposed plat to the County. Respondents were informed that before the County would approve the plat they must comply with several conditions. Insofar as this case is concerned, the most important condition is the requirement that the proposed plat be serviced by a 50-foot county or public road connected to Lookout Point Road.
Initially respondents asked the County to condemn the 50 foot right-of-way which would overlay Brown Road. The County refused because it would not be beneficial to the County to allocate road funds to such a minor road. Thereafter, respondents sought, unsuccessfully, to obtain the approval of a variance which would reduce the 50-foot roadway to 30 feet.
Ultimately, at the suggestion of their attorney, respondents proposed to the County that the plat be approved conditioned upon respondents acquiring a 50-foot private way of necessity that would overlay Brown Road and conditioned upon building the road to County specifications. Respondents also were to acquire certain rights such as the right to locate public and private utilities within the right-of-way and the right to regulate approaches. Finally, it was proposed that respondents would transfer the completed project to the County as a county road.
The proposal met with the approval of the County Commissioners and the plat was conditionally approved on August 17, 1979 subject to 17 conditions. Only the two following conditions are material here:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
4) Acquisition of a fifty foot wide road easement connecting the plat to Lookout Point Road accessible to and useable by the general public at large and capable of being transferred to the County for full maintenance and use as a County road, including the right to locate public and private utilities within the right-of-way, the right to regulate approaches along the length of the right-of-way and the right to regulate uses inconsistent with use of the right-of-way as a County road. Said right-of-way shall be acquired, improved to a 22 foot minimum width light bituminous surface to County road standards (except that no curbs and gutters shall be required) and transferred to the County prior to final plat approval.
17) County will participate in the construction of Brown's Road in the amount of $30,000 and the developer will do the actual construction to meet county standards for a light bituminous treatment.
Prior to institution of the condemnation proceedings and the petition for declaratory judgment, respondents entered into an agreement with Mr. and Mrs. Sunquist. In return for a specified sum the Sunquists agreed to place in escrow a deed to the County which would convey for roadway purposes a 50-foot easement over the one-fourth mile of their property traversed by Brown Road. The deed is to remain in escrow until respondents have completed acquisition of the western one-fourth mile of right-of-way, i.e., the 50-foot roadway sought in this lawsuit which will overlay the western one-fourth mile of Brown Road. Further, the deed is not to be released to the County until there is proof the County will accept the entire 50-foot roadway as a county road. In short, the Sunquist agreement with respondents is wholly dependent on the success of the instant condemnation and declaratory judgment actions.
Based upon paragraph 4 of the preliminary plat, respondents sought to condemn a "private way of necessity" for a 50-foot easement running westerly one-fourth mile along Brown road from the Sunquists' western property line. Respondents also brought an action for a declaratory judgment that would authorize transfer of the condemned private easement to the County for public road purposes. These actions were opposed by appellants. Aside from appellants, who have a fee interest to an easement in the property comprising the proposed county road, other necessary parties were joined, including corporations having utilities along the western one-fourth mile of Brown Road. The trial court granted both the petition for a "private way of necessity" and the declaratory judgment. We reverse the trial court in both actions.
Appellants have assigned error to numerous findings of fact and conclusions of law entered in support of the order adjudicating a private way of necessity. Similarly, they have assigned error to numerous findings of fact and conclusions of law entered in support of the declaratory judgment. As will be explained more fully in the opinion the assignments of error are well taken. We shall not attempt to address each specifically. At this juncture it is sufficient to say that the findings and conclusions were proposed and adopted on the mistaken assumption that Const. art. 1, § 16 (amendment 9), and RCW 8.24.010 authorize, for commercial development purposes, condemnation of a roadway with the physical dimensions and legal scope sought here. Further, there appears to have been a misapprehension that in a private condemnation proceeding a private condemnor, acting under the guise of a "private way of necessity", may obtain those powers normally attributable to a public condemnor in a public condemnation proceeding such as the power to control the location of public and private utilities, regulate approaches along the "private way of necessity" and to regulate generally any uses inconsistent with use of the right-of-way as a county road.
The same misapprehension pervades the declaratory judgment action. Further, there was an incorrect assumption that private lands may be condemned for a "private way of necessity" even though the condemnor clearly contemplates that the condemned private land ultimately will be transferred to the County for public road purposes. Here too, with but few exceptions, the challenged findings of fact are not relevant and the conclusions of law based thereon are incorrect.
Although, the Washington Constitution generally prohibits the taking of private property for private use, such property may be taken for the creation of a "private way of necessity". Const. art. 1, § 16 (amendment 9). Since the constitutional provision is not self-executing RCW 8.24 fleshes out the constitution and more fully declares the conditions under which private property may be condemned for a "private way of necessity". RCW 8.24.010 provides in pertinent part:
An owner, or one entitled to the beneficial use, of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a...
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